BERNHARD  L.  DEUTSCH, 

Born  at  Kanitz.  Austria, 

January -2. 1819. 
Died  there  March  1*.  \*W. 


Sfcck 

P^gg 


.THE.. 


THEORY  OF  ORAL  TRADITION 


BY  GOTTHARD  G.  DEUTSCH,  PH.  D. 


As  read  before  the  Central  Conference  of  American  Rabbis, 

at  its  Seventh  Annual  Convocation, 

at  Milwaukee,  Wis. 

July,  1896. 


THE   BLOCH    PUBLISHING  AND    PRINTING    COMPANY,   CINCINNATI,  O. 


.asn  ---2  s:n: 

""ID 


•r;*Vs  n",a  2--  p  r(c^  ,ma  ;z 

...»^»,  ,.  ^».  ««..«.,  «,««.  -«.s  r_.2S  ^.^    .,...  <D 


n^ns4  rr-rta  mir,  r,n:ar  nir  -sen  nw  T.&'T- 


2116348 


ZTbe  Gbeor\>  of  ©ral  Grabition. 


BY  QOTTMARO  DEUTSCH,  PH.  D. 

Professor  of  History  at  Hebrew  Union  College. 


INTRODUCTION. 

In  my  paper  on  the  Scroll  of  the  Law,  presented  last  year  to  the 
Central  Conference  of  American  Rabbis,  I  stated  my  opinion  on  the 
purpose  of  such  essays  as  this.  It  is  not  my  belief  that  such 
investigations  shall  be  regarded  as  decisions,  but  they  shall  from  a 
historical  point  of  view  investigate  topics  which  are  of  immediate 
practical  interest.  They  shall  serve  as  a  guide  to  the  rabbi  who 
wishes  to  form  an  opinion  of  his  own  on  such  questions  as  may  be 
urged  upon  him  to  decide.  A  vote  on  a  subject  which  is  a  matter  of 
conscience  will  never  ultimately  settle  the  question.  It  will,  as  the 
history  of  all  religions  teaches,  sooner  tend  to  dissensions  than  to 
harmony.  A  unity  of  action  is  desirable  for  the  sake  of  proper 
organization,  a  unity  of  thought  in  all  details  is  an  impossibility. 
Judaism  is  broad  enough  to  embrace  a  wide  range  of  different 
opinions,  and  we,  in  tolerating  such  differences,  stand  on  the  historic 
basis  of  Judaism,  which  in  the  second  century  proclaimed  the  fund- 
amental principle  that  no  man  shall  insist  on  his  opinions,  for  the 
fathers  of  the  world  did  not  insist  on  their  opinions.*  A  scientific 
investigation  of  a  law  does  not  necessarily  imply  that  the  practice 
must  accept  the  results  of  the  investigation.  Practice  is  guided  by 
existing  conditions ;  science  knows  of  no  other  law  than  truth. 
We  must  further  be  mindful  of  the  fundamental  idea  of  the  reform 
movement,  which  Geiger  in  his  recently  published  letters!  has  set 


*Edujoth  I,  4. 

tAllg.  Ztg.  d.  Judt.  1896,  p.  806. 


8 

forth  with  a  distinctness  that  is  really  marvelous  in  so  young  a  man 
as  he  was  at  that  time.  We  stand  on  historic  grounds.  That  which 
history  has  made  Jewish,  commands  our  respect,  and  shall  not  In- 
disregarded,  provided  it  is  not  a  dead  weight  on  the  present  genera- 
tion or  does  not  more  evil  than  it  does  good.  An  evidence  brought 
from  traditional  sources  can  neither  confirm  nor  deny  that  which 
becomes  a  practical  necessity.  David  Ha-levi,  the  celebrated  author 
of  Ture  Zahab,  is  undoubtedly  an  authority  for  the  law  that  demands 
of  every  Jew  to  keep  his  head  covered,  and  brands  the  uncovered 
head  as  "  Chuzpa,"  while  Elijah  Wilna,  the  "  Gaon  "  looks  upon  it 
"  only"  as  a  violation  of  the  moral  law  1D1DH  "ttfD.*  Rabbi  Loewe 
ben  Bezalel  is  authority  for  the  statement  that  by  the  acceptance  of 
the  Copermican  system  one  ceases  to  be  a  Jew.f  Joseph  Caro  is 
outspoken  on  the  question  of  modern  literature  in  the  pulpit,  for  to 
read  a  novel  is  to  him  identical  with  the  worship  of  idols. J  Rabbi 
Jose,  the  leading  scholar  of  the  fourth  century  is  authority  for  the 
necessity  of  keeping  two  holidays, Jj  and  Rabbi  Jehuda  in  the  second 
century  makes  it  our  duty  to  read  every  week  the  traditional  portion 
of  the  Thora-H 

Belief  in  authority  leaves  no  alternative.  Either  you  accept  it  or 
you  place  yourself  outside  of  the  religious  community.  Belief  in 
the  binding  power  of  old  authorities,  and  consequently  in  the 
unchangeableness  of  the  law  is  not  so  undoubtedly  Jewish  as  it 
seems.  True  it  is  that  under  the  influence  of  Pauline  radicalism,  R. 
Joshua  in  the  beginning  of  the  second  century  declared  that  the 
prophet  Elijah,  i.  e.,  the  Messiah,  would  never  alter  one  law,**  and 
this  view  is  by  its  author  proclaimed  as  a  fundamental  doctrine  of 
Ju'daism,  handed  down  from  generation  to  generation  since  tbe  time 
of  Moses.  It  must  also  be  admitted  that  previous  to  the  rise  of 
Christianity,  Judaism  taught  that  not  a  jot  of  the  Law  should  ever 


*Ture  Zahab  Orach  Chajim  8,  3  and  to"jn  ""I1SU  i''. 

Hn  rtjuun  "IN3  fol.  3S.  c;  42,  d.  Xun/  in  his  hi..<,'rapliy  <.l  A/urinli  dei   Rossi 
in  CjD3^>  cpVO  Wilna.  istio.  p.  9. 

iOrach  Chajim  307,  H',. 

$Jer.  Krubin  Ch.  III.  (in -\7.  Gesch.  Bd.  IV,  p.  -j:.7. 

HMegilla  Bib. 

**Edujoth  s,  7  cp. 


perish,*  and  that  heaven  and  earth  would  pass  away  but  the  Law 
should  never  pass  away.f  However,  practical  necessity  was  stronger 
than  the  letter  of  the  Law.  The  strict  observance  of  the  Sabbath 
had  during  the  Maccabean  war  become  an  impossibility,  and 
therefore  it  was  decided  that  even  on  the  Sabbath  it  was  lawful  to 
defend  one's  life.  Theory  came  afterwards  to  justify  what  practice 
had  made  lawful  before.  The  school  of  Shammai  found  that  the 
words  "  Thou  shalt  make  bulwarks  against  the  city  until  it  fall" 
justified  a  continuation  of  warfare  on  the  Sabbath.  \ 

Rabbi  Simeon  ben  Menassja  says  in  a  general  way  that  Sabbath 
is  given  to  man.jj 

From  such  an  occasional  breaking  of  the  Law  it  was  only  one  step 
to  the  declaration  of  the  principle  that  scripture  left  the  interpreta- 
tion of  the  Law  to  the  rabbis  of  each  generation.! 

It  is  said  also  that  every  court  or  Synhedrin  had  the  same  author- 
ity which  was  vested  in  Moses  and  Aaron,**  and  that  if  the  rabbis 
say  that  which  is  right,  is  left,  thou  shalt  not  depart  from  their 
words.  ff  As  practice  has  produced  theory,  so  practical  reasons  had 
the  effect  of  limiting  the  theory  Had  for  instance  the  Maccabean 
revolution  and  the  edicts  of  Hadrian  made  the  strict  observance  of 
the  Sabbath  impossible,  then  followed  theory  and  proved  the  right 
of  a  war  of  defense  from  the  words  "  until  it  fall,"  and  the  right  to 
violate  the  Sabbath  if  it  was  necessary  for  the  preservation  of  life 


-p»  ni«  Exod.    Rabba  Ch.  VI  cp.    Matthew  V,  17-20. 
tTanchuma  ad  Gen  42,  1  cp.     Matthew  5,  18  and  Luke  16,  17. 

I^DX     nrtTl  ~\y  Siphre  ad  Deut.  XX-20  ed,  Friedmann  p.  lllft  cp. 


I  Makk.  3,  41:  Jos.  Antiquities  XII,  3,  40-41,  also  Sabbath  60a  which 
Graetz  III  p.  152  referred  to  the  Hadrianic  period,  although  the  parallel 
passage  in  Josephus  should  have  proven  to  him  the  falsehood  of  this  view. 

§Mekilatha  Ex.  31,  14  ed  Friedm.  p.  104a. 

IID^DDH^  tt!?N  airiDn  pDO  i6  Chagiga,  18a,  and  parallel  passages. 

**Rosh  Hash  256. 

•HSiphre,  Deut.  17,  11.  Malbim,  the  apologete  of  rabbinical  exegesis, 
understands  this  as  subjective  only  :  If  you  sc.  wrongly  think  that  the 
rabbis  teach  right  is  left  ]'D^  i?KCt?  paniDC?  TOinC*  Com.  on  Deut.,  Warsaw 
1880,  p.  235. 


10 

from  the  words  "holy  unto  you."*  But  as  soon  as  this  principle 
\\as  generalized,  theory  limited  it,  saying  that  only  in  calendation 
the  rahbis  had  absolute  power,  but  not  in  the  observation  of  the 
Sabbath-rest.  This  vacillation  between  the  theoretical  acceptance 
of  authority  and  the  practical  self-emancipation  from  it,  we  find 
throughout  Jewish  history,  as  throughout  history  in  general. 
Raltban  Gamaliel,  who  preached  and  practiced  liberal  Pharisaeism 
opposing  Christianity!  on  one  side  and  strict  rigorism  on  the  other, 
interpreted  the  Law  more  according  to  its  spirit  than  according  to 
its  letter.  He  prayed  on  the  day  of  his  marriage,  although  tradition 
was  against  it,  because  a  bridegroom  was  not  supposed  to  be  in  a 
sufficiently  calm  state  of  mind  to  approach  God.  But  R.  Gamaliel 
had  a  higher  view  of  prayer.  It  to  him  was  not  the  performance  of 
a  duty  regulated  by  a  code  of  ceremonies ;  it  was  the  acknowledg- 
ment of  the  Kingdom  of  Heaven,  of  God's  ruling  over  the  world, 
and  so  he  prayed, J  but,  when  R.  Gamaliel  had  died,  his  son  and  suc- 
cessor, R.  Simeon,  limited  this  liberal  interpretation.  "  My  father," 
he  said,  "stood  above  the  common  level.  What  he  would  permit 
himself  not  everybody  has  a  right  to  do."S 

I.      CONSCIOUS   OPPOSITION  TO  THE   LAW. 

The  practice  disregarded  law  even  in  Talmudic  times  and  the  the- 
ory found  an  excuse  for  it  by  pointing  to  the  verse  in  Psalms,  The 
Lord  preserveth  the  simple. ||  In  a  number  of  instances  the  author- 
ity of  tradition  was  refuted  by  the  statement  that  this  tradition 


*Ex.  31,  14. 

tRabban  (fiunaliel's  opposition  to  Christianity  is  sufficiently  proven  by 
i  he  lc<ri.|id  that  makes  him  ridicule  the  inconsistency  of  the  Christian  view 
in  regard  to  the  obligatory  Character  of  the  law.  (Sabb.  IKJ.'j)  also  by  the 
fact  that  he  excommunicated  K.  Eliezer,1he  leader  of  Judaco-Christianity 
I '.alia  Me/ia  .v.i/,  i  and  that  In  •  wa-  opposed  to  all  Greek  translations  of  the 
Bible  (Sabbath  ll'vO.not  as  Y.\\\\-/.,  (lot.tsd.  Yortr  p.  ii.">  supposes  Aramaic) 
because  they  were  interpolated  by  Christ  inns.  cp.  Hilyenl'eld  ;  IHealttest. 
Citate  Justin's  in  Zeller  theol.  Jahrb.  1850,  p.  31K). 

•I'.i-nikhoth  16a. 
$ib.  166. 

Ill's,  lit',,  i;.  Sabb.  1 !".».-  Aboda  /an.  :;n/,.  Nidda  U\n  ;  4-V.  (and   parallel  pas- 
sages) ;  Tosefta  Nidda  Ch.  2,  ed.  Zuckernmndel  p.  i\l;}. 


11 

was  not  genuine.  So  without  any  authority  it  is  said  that  a  Baraj- 
tha  quoted  by  Raphrem  is  apocryphal*  or  that  a  law  passing  under 
the  authority  of  Mar,  the  son  of  Rabina,  was  not  authenticated  by 
his  signature.f 

Even  the  Geonim  in  spite  of  their  strict  adherence  to  authority 
occasionally  departed  from  the  rabbinnical  law.  To  them  not  only 
the  Talmudic  Haggada  was  authoritative,  which  as  Rab  Haj  com- 
plains was  disregarded  by  those  who  had  studied  the  philosophical 
works  of  the  Greeks,*  but  even  every  popular  custom  of  heathenish 
origin  had  to  be  strictly  observed  on  the  supposition  "that  our  an- 
cestors have  not  without  sufficent  cause  accepted  it.Jj  So  they  lim- 
ited the  time  of  twelve  months  set  by  the  Talmud  for  the  granting  of 
a  divorce  to  a  woman  who  refuses  to  live  with  her  husband  mTlDl 
and  granted  the  divorce  right  away  because  ehe  might  bring  her 
case  before  the  courts.** 

Against  the  clear  law  of  the  Mishna  which  gives  to  the  children 
the  right  to  inherit  their  mother's  dowry  fl^'H  j^2  rsir^t  the 
Geonim  decided  that  the  husband  had  unlimited  rights  to  dispose 
of  the  wife's  property  because  as  they  said,  the  law  originally  was 
made  to  induce  the  father  to  give  his  daughter  a  dowry  ;  while  in 
the  times  of  the  Geonim  Jewish  fathers  gave  attention  to  the  daugh- 
ters to  the  detriment  of  the  sons.**  While  according  to  the  Talmud§§ 
the  chattels  which  form  part  of  an  estate  are  exempt  from  being 
foreclosed  by  creditors,  the  Geonim  simply  abolished  this  law,  be- 
cause in  their  times  the  Jews  were  not  any  more  real-estate  owners, 


*Kerithoth  14«  SJTTQ,  apocryphal  or  xmtH  fictitious,  s.  Isaiah  Pick's  Notes 
to  Pes.  11  «. 

tJebamoth  22'<    this   i.s   the   interpretation   of  Jechiel    Heilprin,    in  "HD 
nnnn  ed.  Warsaw  1882;  vol.  II,  p.  268. 

iln  En  Jacob  Chagiga  146,  as  instance  of  the  literal  belief  in  Haggada 
cp.     Ilessp.  of  Geonim,  ed.  Lyck,  No.  16,  28. 

§Kesp.  ed.  Lyck  Xo.  14,  Weiss,  Gesch.  d.  j.  Trad.  Ill,  17(>. 

HKethuboth  C>3«. 

**Shaare  Zedek  4,  4,  15. 

ttKethnboth  ~r2l>. 

ttShaare  Zedek  4,  4,  17. 

^Kethuboth  92a. 


12 

and  to  maintain  the  law  would  have  meant  a  serious  injury  to  legiti- 
mate interests.* 

Isaac  Alfasi  speaks  of  a  decision  of  the  Geonim  as  an  error  based 
on  a  false  interpretation  of  the  Talmud  STl>W3  IjTT  tih  ,t  »»d  Mai- 
monides  says  in  regard  to  a  law  of  the  Geonim  that  it  is  a  serious 
error  n^TW  mytD  .f  It  is  well  known  that  Maimonides  himself  did 
not  escape  severe  criticism,  and  that  Abraham  ben  David's  critical 
notes  on  Maimondes'  code  are  full  of  strong  invectives  which  over- 
step the  lines  of  common  decency,};  that  his  rationalistic  views  on 
prophecy  on  ressurrection  and  the  Messianic  kingdom  are  subjected 
to  severe  criticism  chiefly  by  the  French  and  partly  by  the  Spanish 
rabbis  of  the  13th  century. jj  It  is  more  interesting  however  that  in 
regard  to  a  ritual  law  later  rabbis  dared  to  speak  of  Maimonides1 
opinion  as  an  error,  and  that  Abraham  Danziger,  a  man  whom  we 
may  term  a  typical  expounder  of  19th  century  Neo-Orthodoxy 
dared  say  of  Maimonides  that  his  view  was  erroneous. ||  Consider- 
ing the  little  esteem  in  which  during  the  12th  and  13th  century  the 
French  and  German  Rabbis  were  held  by  their  Spanish  brethren,**  it 
is  interesting  to  note  that  the  former  retaliated  and  that  R.  Jacob 
Tarn  protested  against  an  opinion  imputed  to  him  saying :  "  1  never 
thought  of  such  a  thing  but  the  Spaniards  said  so,"ff  implying  that 
this  mere  fact  sufficed  to  dispose  of  the  opinion  as  worthless. 
II.  Asher  b.  Jehiel  an  orthodox  authority,  a  man  who  thanked  God 
that  he  never  had  an  opportunity  to  study  anything  except  Bible 


*Shnare  Zedek  3,  65.     See  on  the  deviations  from  Talmudic  law  l»y  (lie  (ie- 
onim  the  exhaustive  chapter  in  Weiss.  Gesch.  d.  jued.  Trad.  IV.  I'd:*,  fT. 

tSee  the  <|iii'tati<iiis  in  Weiss  IV,  202,  Note  I'. 

iTshulmh  III.  7,  he  calls  Maimonides  a  heretic.    Other  passages  Weiss 
IV.  :«K).  f. 


trhmani  in  JYISOp  mJN   p.  s  in  Kesp.  Maim.  Leip/iit   IN")!*  speaks  of  all 
French    IJaMiis  as  M.  s  opponents. 

HChokiiiatli  Adam  Cli.  107.  1:.'.  :  Abraham    Ihin/.i^cr.  died    ls'_>u  jis   memlier 
Dl  the  raliliinieal  hoard  of  Wilna. 

**Maimonides   never  mentions  Kashi.  and  in  a  letter,  which,  although   of 
donlilful  origin.  is  the   work  of    an  early   Spanish    writer,  contempt  uouslv 
,s  c.f  t  he  DTIS1Y. 

ttSefer  liu-.Iashar  I!  17. 


13 

and  Talmud,*  had  found  an  excuse  for  the  neglect  of  the  rabbinical 
law  that  makes  it  a  duty  to  wash  the  hands  after  meal  before  grace. f 
although  the  Talmud  derives  this  law  from  the  Bible,!  and  Isaac  Al- 
fassi  had  refuted  all  attempts  to  rationalize  on  it.>j  In  this  case  R. 
Asher  has  simply  followed  the  common  principle  of  which  we  spoke 
in  the  beginning,  viz,  to  establish  a  theory,  in  order  to  justify  the 
existing  practice.  But  in  a  number  of  other  instances  he  declares 
very  boldly  that  in  questions  which  are  not  decided  by  the  Talmud 
every  rabbi  is  at  liberty  to  decide  for  himself,  even  against  a  clear 
statement  of  the  Geonirn,||  and  that  the  Talmudic  law  that  prohibits 
all  changes  of  the  traditional  prayer  cannot  apply  to  the  prayers 
made  by  the  Geonim.** 

Even  R.  S.  B.  A.,  who  is  typical  for  such  a  strict  belief  in  authority 
that  he,  even  after  he  disproved  Nachmanides'  opinion,  would  dis- 
claim any  authoritative  value  of  his  own  view, ft  says  in  regard  to  an 
opinion  of  R.  Jonathan  Ha-Cohen  of  Lunel :  "  I  am  not  responsible 
for  his  statements."^ 

It  would  be  impossible  to  give  a  complete  series  of  evidences  of 
this  liberal  spirit  that  makes  man  rebel  against  authority,  that  made 
a  Luther  say,  he  would  go  to  Worms,  and  if  every  tile  on  the  roofs 
were  a  devil.  It  also  is  unnecessary,  the  cited  instances  suffice  to 
prove,  that  in  spite  of  the  prevailing  tendency  in  Judaism  to  accept 
everything  that  claimed  to  be  tradition,  we  find  ample  evidence 
of  a  struggle  for  emancipation  from  the  bonds  of  ecclesiastic  auth- 


*Resp.  Asheri  Xo.  55,  10,  b  see  Graetz,  VII.  234,  note  4. 

+D"J1"inx  D^Dinhis  Hilkhot  Berakhoth,  fol.  536  D'CO  Krrxn  UiTJ  &OE>  HO 

irSvN  '1X0  rrono  nta  pxtr  'EfcTnnnK 

iLev.  11,  44  and  20,  7  the  verse  is  misquoted  in  the  Talmud,  see  Lipmann 
Hellers's  commentary  on  R.  Asher  ad  locum.  Berak.  536,  cp.  Chullin  I06a  ; 
Joma  836,  where  it  is  quoted  as  a  Mishna. 

§Alfassi  Chullin  106a. 

Had  Syn.  33a,  ag.  the  view  of  Zerahya  halevi,  clearer  still  in  his  Resp.  •">•"">.  '.' 

mim  ^ 


**Berakhoth  Perek  I.   These  and  similar  passages  in  Weiss.  Gesch.  d.jued. 
Tr.  V.  p.  63  S. 


l  nr     In  Torath  ha  bajith  he-arukh  I.  1. 

iiResp.  1.  128.  mr6  pxins  us*  pst 


14 

ority.  And  therefore  we  shall  cite  only  a  few  more  instances  from 
more  recent  times,  because  with  the  close  of  the  15th  century  criti- 
cism was  almost  unknown  to  the  Jews.  The  authorities  quoted  are 
selected  just  from  amongst  those  who  are  regarded  typical  for  their 
strict  adherence  to  traditionalism. 

Moses  Isserls  a  well-known  rigorist,  says  in  spite  of  older  authori- 
ties quoted  by  himself  that  occasionally  one  may  devote  his  time  to 
scientific  studies,*  although  the  silence  of  R.  Joseph  Karo  and  the 
explicit  testimony  of  others  are  against  the  toleration  of  studies 
other  than  talmudic. 

David  Halevi,  author  of  3HT  "HID,  another  rigorist,  has  the  bold- 
ness to  assert  that  Joel  Sffirkes,  his  father-in-law,  whom  he  otherwise 
holds  in  high  esteem,  as  well  as  R.  Joseph  Karo,  gave  not  the  duo 
attention  to  a  certain  question  of  the  ritual  HT2  jT*yn  mi"  "H*1  IN^  fc^t 
what  means  that  their  decision  is  based  on  an  erroneous  interpreta- 
tion of  the  Talmud.  The  same  rabbi  also  rejects  an  opinion  of 
Maimonides  in.  ritual  law,}  and  in  this  instance  he  is  upheld  by  one 
of  the  strictest  believers  in  authority,  by  Abraham  Danziger,  who, 
however  refrains  from  mentioning  Maimonides'  name,  saying : 
"  Take  care  to  understand  this  principle  for  one  of  our  great  writers 
has  committed  an  error  in  this  case."§ 

*Jair  Chajim  Bacharach,  one  of  the  more  enlightened  rabbis  of  the 
seventeenth  century,  has  preserved  us  a  case  which  is  highly  signifi- 
cant for  the  fact  that  in  spite  of  all  adherance  to  authority,  it  is  by 
practical  considerations  that  the  interpreters  of  religious  law  are 
guided.  A  man  Lad  trespassed  upon  the  ritual  law  drinking  wine 
with  non-Jews,  and  the  rabbi  of  the  community  had  refused  to 
proceed  against  the  sinner  with  disciplinary  m<  asures  because  he 
feared  that  the  sinner  would  go  from  bad  to  worse  and  renounce 
Judaism  altogether.  Members  of  the  congregation  who  were  dis- 
satisfied with  the  rabbi's  leniency  appealed  to  Bacharach,  who, 
although  opposed  to  this  lenient  decision  in  which  he  saw  an 
encouragement  to  sin,  still  maintained  that  leniency  in  some  cases 


*.Jorah  IVith  L' 
T.I,,r.-li  I>.M!I  189-48. 

-;n>.  18 

»;  m. 


15 

may  be  justifiable,  for  even  the  Shulchan  Arukh  recognizes  the 
principle  that  we  are  unable  to  enforce  the  traditional  laws  133  ftf 

zbn  b*;  mn  ivzvz  Toyr6  ro.* 

2.    CIRCUMVENTION    OF    THE    LAW    AND    INCONSISTENT  APPLICATION. 

The  necessity  to  depart  from  the  standard  of  tradition  will  make 
itself  felt  in  questions  concerning  marriage  more  than  in  any  other 
case,  for  it  is  just  in  such  cases  that  the  rabbi  becomes  aware  of  the 
responsibility  which  he  assumes  by  a  rigoristic  refusal  to  comply 
with  the  demands  made  upon  him.  There  were  some  burdensome 
law-  which  frequently  conflicted  with  practical  cases,  and  which 
the  rabbi  could  not  overcome  by  some  evasive  measure,  as  it  is  the 
case  with  the  levirate.  The  rabbinical  law  does  not  permit  a  widow 
or  a  divorced  woman  to  marry  again  before  her  youngest  child  is 
two  years  of  age.f  This  law  although  meant  to  benefit  the  child  by 
securing  for  it  the  full  care  of  the  mother,  frequently  harmed  the 
child,  because  it  prevented  a  destitute  mother  to  marry  again,  and 
to  provide  for  the  child.  We  see,  therefore,  that  the  rabbis  of  18th 
century  found  always  some  loop-hole  to  escape  from  this  law,  al- 
though maintaining  that  the  authorities  of  old  lost  nothing  of  their 
importance,  as  in  19th  century  such  instances  occurred  more 
frequently,  because  even  the  orthodox  rabbis  were  conscious  of  their 
duty  not  to  go  to  extremes,  rabbinical  literature  of  19th  century 
furnishes  more  evidence  of  the  same  fact.* 

Another  important  question  is  the  marriage  of  a  widow,  when  the 
death  of  her  husband  could  not  be  ascertained  by  the  identification 
of  the  body  nj">'.§  Here  we  see  that  the  most  rigoristic  rabbis  are 
inclined  to  take  a  lenient  view  of  the  law  by  trying  to  find  the  case 
that  is  before  them  an  exceptional  one. 

A  third  class  of  matrimonial  questions  is  the  marriage  between  a 
woman  that  had  borne  an  illegitimate  child  or  that  is  pregnant  and 
a  Kohen.  The  strict  law  does  not  admit  any  evidence  in  regard  to 
the  father  of  an  illegitimate  child,  and  consequently  Avhen  the 


*Choshen  Mishpat  17,  3,  Chawoth  Jair  No.  141. 
tJebamoth  30,  b  and  42-b. 
JEben  Ha-ezer  13,  11. 
^Appendix. 


16 

inhabitants  of  the  town  are  not  people  who  can  enter  into  a  legal 
marriage  with  a  Jewess,  the  woman  would  be  regarded  a  harlot  and 
could  not  marry  a  Kohen.  Still  the  greatest  rigorist  will  find  a 
loop-hole*  through  which  they  could  escape  the  consequences  of 
the  law,  which  would  be  a  hardship  and  an  injustice,  if  the  Kohen 
is  the  father  of  the  child  or  is  responsible  for  the  pregnancy  of  the 
woman. 

The  reason  for  the  leniency  in  these  an.d  similar  cases  is  the  prac- 
tical necessity  or  the  impossibility  to  carry  out  the  law  to  the  letter. 
The  same  reason  is  apparent  in  many  other  cases.  Usury  or  even 
lending  money  on  interest  is  against  the  biblical  law,  and  although 
in  the  Pentateuch,!  limited  to  Israelites  only,  the  Talmud  general- 
izes it  and  Rab  Nahman,  the  great  Babylonian  jurist  applies  to  one 
who  would  lend  money  on  interest  to  non-Jews  the  scripture  passage, 
"  He  that  augmcnteth  his  substance  by  usury  and  increase,  gathereth 
for  him  that  hath  pity  on  the  poor,"J  and  says  that  the  extortions  of 
King  Sapor  were  a  punishment  for  usury  with  non-Jews..^  Another 
passage  in  the  Talmud ||  explains  the  verse,  "  He  that  putteth  not  out 
his  money  to  usury"**  to  include  the  usury  with  non-Jews,  and  in  a 
Mid  rash  it  is  said  that  the  dead  whom  Ezekiel  resurrected  were 
600,000  Israelites  who  had  worshipped  the  idol  which  Nebuchadnezar 
had  set  up  in  the  valley  of  Dura,  and  of  the  whole  number  only  one 
was  not  resurrected  because  he  had  lent  money  on  usury. ff 

The  intention  of  this  Midrash  evidently  is  to  show  that  God  will 
sooner  pardon  idolatry  than  usury.  Still  R.  Jacob  Tarn,  known  as 
a  rigorist  excuses  usury  because  "  we  have  to  pay  such  heavy  taxes 


•Appendix  I. 

tEx.  -2-2.  34;  l,.-v.  •_'.->.  :;r»-:57 ;  DIMM  .  ir>,  :*. 

JProv.  28,  8. 

§Baba  Mezin  "()/<. 

HMakkoth  :.'•»</ 

*»Ps.  XV,  5. 

tt.Jsilkut   No.  876  I'n.in   I'irkr  d'  K.  Klio/er.     fn  Thossaphoth,  Babs  Mezia 

7l>/'.       Thi>   .Midr;i>li   is  .(iinti-d    imm   Tliur^iim   njHS  f6tl'  ID  mm   Kx.  1)5,  17 
\\lierr  I  could  not  lind  it. 


17 

to  the  king  and  the  barons,  that  even  the  highest  rate  of  interest 
only  suffices  to  meet  the  barest  necessities  of  life."* 

The  eighteenth  century  had  brought  the  Jews  into  closer  contact 
with  their  Christian  neighbors,  and  the  consequence  was  that  they 
became  laxer  in  regard  to  the  ritual  law.  Amongst  other  things  they 
allowed  themselves  to  shave  with  a  razor.  In  vain  had  R.  Jonathan 
Eibeschitz  proven  that  the  prophet  Isaiah  had  already  condemned 
such  a  practice.  f  R.  Ezekiel  Landau,  Elbeschitz's  contemporary 
and  antagonist,  felt  inclined  to  permit  people  to  shave  on  Chol-ha- 
Moed,  for  as  he  precautiously  indicates  the  practice  to  shave  with  a 
razor  had  grown  to  such  an  extent  that  if  the  Jewish  barbers  were 
not  allowed  to  shave  their  customers  with  the  salve,  they  would 
shave  with  a  razor,  and  furthermore  R.  Ezekiel  thinks  that  shaving 
before  the  beard  is  so  long  that  the  hair  may  be  turned  back  to  its 
roots,  is  even  not  prohibited  when  done  with  a  razor.};  Still  in  the 
nineteenth  century  this  sin  was  so  general  that  R.  Akiba  Eger  could 
not  any  more  sustain  a  demurrer  against  the  testimony  of  a  man 
who  shaved  with  a  razor,  and  accepted  this  testimony  because  the 
man  had  only  been  seen  sitting  in  a  barbershop  with  soap  on  his 
face  and  a  towel  around  his  neck,  so  that  one  could  suppose  the 
sinner  had  in  the  last  moment  repented  of  his  evil  ways.§  It  is 
here  practical  necessity  again  that  prompted  the  lenient  theory. 

*Thossaphoth,  B.  Mezia,  706  -pen  n"1,  See  on  R.  Tarn.  Grsetz  VI,  3,  p.  179, 
where  in  Note  8,  B.  Mezia  Ib  instead  of  706. 


tSee  (Jijirp  n2!"lX  on  Is.  43,  21.  This  "  homiletical"  explanation  of  the  pas- 
sage in  Isaiah,  "The  people  whom  I  have  adorned  if  with  thirteen  rows  of 
hair  in  the  beard  riSD1  shave  my  glory,"  is  a  classic  instance  of  the  degraded 
homiletics  in  the  eighteenth  century. 

trmrra  jrm  Orach  Chajim  1,  13  and  II,  99-101.  This  leniency  met  with 
opposition.  Azulai  in  DvVlJn  DB>  s.  v.  accuses  Landau  of  having  used  false 
measure  lp  nOJ,  although  he  is  inclined  to  leniency  himself  ^NE?  D"fl  No.  G. 
Isaac  Samuel  Reggie  devoted  to  this  question  a  special  treatise  nn^jnn  "IDSD 
Vienna  1835  and  his  father  Abraham  Vita  Reggio  refutes  the  son's  argu- 
ment in  a  pamphlet  called  nn^Jnn  1DKO.  1844. 

§Respp.  of  Akiba  Eger  Xo.  96.  D'pDD  especially  interesting  for  the  pilpu- 
listic  distinction  between  the  testimony  concerning  sexual  sin  where  it  is 
not  necessary  to  witness  the  act  mSlDKO  ^rDM  (Makkotli  1«  B.  Mezia  91«) 
and  the  testimony  in  regard  to  shaving  when  circumstantial  evidence  is 
not  admitted,  because  in  the  latter  case  there  is  no  jnn  ~l¥\  and  the  sinner 
may  have  repented  in  the  last  moment. 


18 

II.  Mordecai  Benet  is  another  type  of  that  uncompromising  ortho- 
doxy that  refused  to  make  the  slightest  concession  to  the  spirit  of 
the  age.  He  is  known  as  one  of  the  strongest  opponents  to  the 
reforms  introduced  into  the  Hamburg- temple.* 

That  he  was  opposed  to  the  spirit  of  the  Mendelssohn  school  goes 
without  saying,  and  I  have  it  on  good  traditional  authority.  Besides 
it  is  evident  from  his  bitter  fight  against  Aaron  Chorin,f  the  only 
rabbinical  representative  of  liberalism  amongst  the  rabbis  of  that 
period.  It  will  appear  remarkable  that  he  gave  his  approbation  to 
the  Pentateuch  with  Mendelssohn's  translation  and  commentary, 
published  by  Anton  von  Schmied  in  Vienna.} 

But  the  government  was  in  favor  of  education  as  a  means  to  raise 
the  condition  of  the  Jews  and  in  in  its  protective  policy  wished  to 
encourage  the  publication  of  Hebrew  books  in  Austria.  So  Rabbi 
Mordecai  yielded  to  the  government's  wishes  and  approved  of  the 
reprint  of  Mendelssohn's  Pentateuch,  saving  his  conscience  by 
mentioning  neither  the  translation  nor  Mendelssohn's  name.  R. 
Mordecai  went  still  further  in  his  desire  to  please  the  government. 
He  gave  his  approbation  to  the  reprint  of  the  Machzor  with  Wolf 
Heidenheim's  translation  and  commentary,  although  this  was  an 
o] icii  infringement  upon  Heidenheim's  well-deserved  copyright,  and 
a  direct  violation  of  the  rabbinical  law  of  ban  which  a  number  of 
prominent  rabbis  had  pronounced  against  all  who  would  infringe 
upon  Heidenheim's  copyright.  The  subterfuge  that  such  a  ban 
could  not  have  any  power  beyond  the  borders  of  the  country  in 
which  the  rabbis  lived,  was  hardly  meant  in  earnest  by  those  who 
by  such  sophistry  attempted  to  justify  their  action. 

It  was  not  any  law  or  any  religious  conviction  ;  it  was  simply  the 
desire  to  please  the  government  that  made  R.  Mordecai  willing  to 
endorse  the  outrage  perpetrated  upon  Wolf  Heidenheim  by  Anton 
Schmied  and  his  Jewish  advisers. «§  Two  younger  contemporaries 


*Jn  man  '-m  n^S  p.  1 1,  so,,  and  IS  sqq.     See  1S1D  DHH  VI.  No.  S7,  fol.  (Ml. 

K. Trm   Chemed    II.   101.      S.    Loew's  excellent   sketch    in   Gesainmelte 
Schrilten.  I'.d.  II. 

;17!>1,  and  in  several  reprints. 

§The  Marli/or  was  published  in  Vienna  |SU~>.     Heidenheim's  great  merits 
have  as  \.-t  not  been  duly  acknowledged.     He  deserves  a  special  biography. 


19 

of  R.  Mordecai  Benet,  Akiba  Eger  and  Moses  Sofer,  like  him  strict 
rigorists,  also  were  opposed  to  the  least  reform  of  worship  and 
ritual  law  and  conducted  their  Jeshibas  in  the  spirit  of  eighteenth 
century.  Of  the  former's  yielding  to  the  spirit  of  the  age,  we  spoke 
already  before.  We  may  however  mention  as  especially  character- 
istic that  he  says  in  an  approbation  to  a  book  published  by  a  rabbi 
of  Posen  :  "  Your  request  to  pronounce  a  ban  against  one  who  would 
reprint  your  book  I  cannot  comply  with,  as  I  have  made  it  a  princi- 
ple not  to  write  nor  to  pronounce  the  word  QlPi-  It  may  be  necessary 
to  add  the  explanation  that  the  government  of  Prussia  had  prohibited 
the  ban  as  an  interference  with  the  prerogatives  of  the  courts. 

For  the  same  reason  R.  Eleazar  Horowitz  of  Vienna  refuses  to 
yield  to  the  demand  of  a  rabbi  who  wanted  his  signature  as  one  of 
the  hundred  required  to  permit  a  man  to  marry  a  second  wife  as  is 
done  in  the  case  if  the  first  wife  is  insane,  and  according  to  the 
rabbinical  law  cannot  be  divorced.*  Horowitz  implores  his  friend 
to  desist^ from  such  an  illegal  intention  and  says  that  he  did  it  once 
and  repented  of  it,  and  in  many  a  sleepless  night  that  he  passed  in 
consequence  of  his  action  he  vowed  never  to  do  anything  which  was 
against  the  law  of  the  land.f  This  suppression  of  the  rabbinical 
law  when  it  comes  in  conflict  with  the  state  law  is  quite  modern.* 


*See  on  this  point  Eben  Ha-Ezer  I,  10.  The  institutions  of  R.  Gershom 
in  Respp.  of  Meir  Rothenburg.  In  Alexandria  the  custom  still  exists  to 
make  every  bridegroom  sign  a  statement  that  he  would  not  marry  a  second 
uil'e,  except  the  first  wife  had  no  children  within  ten  years.  The  European 
Jp\vs  of  Alexandria  however  refused  to  sign  such  a  paper,  and  so  the  rabbi 
agreed  to  write  in  the  marriage  records  that  the  groom  should  not  marry  a 
second  wife  except  with  the  consent  of  the  rabbinical  court.  E.  B.  Ha/an 
Alexandria  1894,  p.  486. 

T  Vienna,  1870. 

iMar  (Samuel,  the  great  Babylonian  teacher  and  jurist, laid  down  the  rule 
Xm  NJTotan  >OH  (Gittin  l()c)  and  in  many  parallel  passages.)  Still  it  was 
frequently  explained  to  mean  only  such  lavs  as  are  not  in  direct  conflict 
with  religious  law.  In  recent  years  R. -Hoffmann,  of  Meiningen,was  severely 
censured  because  he  would  derive  from  this  principle  a  permission  for  Jewish 
scholars  to  write  their  lessons  on  Sabbath.  Orient  1842.  When  the  gov- 
ernment of  Mecklenburg  prohibited  the  early  burial  which  wns  customary 
amongst  the  Jews,  the  latter  refused  to  obey  (  Kayserling  Mos.  Mcndelss..  p. 
27(t),  and  still  Moses  Sofer  says  the  Jews  should  only  yield  to  force  in  this 
question.  Joreh  Deah  338.  He  also  seems  to  be  inclined  to  oppose  military 


20 

In  olden  times  the  rabbi  was  in  the  first  ami  last  place  a  judge  as  he 
still  is  to-day  in  the  East,  and  R.  Raphael  Kohen  in  Hamburg  resigned 
his  office,  because  he  would  not  officiate,  when  the  government 
would  not  permit  him  to  act  as  a  judge  in  civil  affairs. *a. 

R.  Moses  Sofer  may  be  regarded  the  real  founder  of  Neo-Ortho 
doxy.  He  was  the  most  consistent  opponent  to  all  innovations  in 
practice  and  dogma.  Yet  in  one  case  he  gives  utterance  to  a  prin- 
ciple which  is  the  very  core  of  all  reform  theories.  In  the  Ghetto 
of  Eisenstadt  a  few  Christians  had  bought  houses,  and  according 
to  the  Talmudic  law,f  the  subterfuge  by  which  the  prohibition 
against  carrying  anything  from  a  house  to  the  street  and  vice  versa 
was  nugified,  viz  :  to  make  a  fence  around  the  Ghetto  so  as  to  make 
it  one  court-yard,  could  not  be  considered  as  valid.  However,  this 
fact  could  not  be  altered,  and  R.  Moses  says  that  the  reason  for  this 
law  was  that  the  social  intercourse  between  Jews  and  non-Jews  should 
be  prevented,  but  since  in  our  age  we  have  to  come  in  contact 
with  non-Jews  in  order  to  gain  the  means  of  a  livelihood,  this  law 
cannot  be  carried  out.J  So  even  this  champion  of  uncompromising 
orthodoxy  is  forced  to  admit  that  certain  rabbinical  laws  have 
become  inoperative. 

Another  champion  of  orthodoxy  is  Samson  Raphael  Hirsch.  We 
gladly  admit  that  he  was  sincere  in  his  endeavor  to  maintain  the 
religious  standard  of  the  eighteenth  century,  although  he  departed 
from  it  by  permitting  general  education  and  modern  social  life. 
And  so  it  happened  that  in  his  school  a  Schiller  celebration  was 
held  at  which  two  girls  appear  in  boys'  clothes.  To  the  question 
l>y  an  inquirer  in  one  of  the  Frankfurt  dailies  how  this  fact  could 
be  harmonized  with  the  Mosaic  law,§  the  answer  was  given  that  the 
parents  of  the  girls  had  given  their  consent,  and  that  the  girls 
donned  the  boys'  clothes  only  during  one  rehearsal  and  during  the 


vice  because  of  the  conflict  of  the  military  with  religious  duties,  although 

he  \\imld  init  commit  himself  on  this  delicate  question,  saying  flD'  WlpTlt' 


*aSee  his  biography  in  pHV  IDT,  II  1'art,  :?'«  "^yo  p.  Ml. 
tErubin  HL'/.. 

:(  Imtharn  Sof.-r  (  >.  Ch.  !i± 
$Deut.  _': 


21 

performance.  The  son  of  Samson  Hirsch,  Dr.  Mendel  Hirsch,  prin- 
cipal of  the  school  founded  by  his  father,  just  recently  had  occasion  to 
make  the  experience  that  it  is  easier  to  profess  strict  adherence  to 
the  tenets  of  orthodoxy  than  to  practice  it.  In  the  month  of  Nissan 
he  preached  a  funeral  sermon  in  spite  of  the  protest  of  an  orthodox 
rabbi  who  was  assisted  by  a  zealous  disciple,  the  latter  attempting 
to  put  his  master's  theory  into  practice  by  pulling  the  speaker  down 
from  the  pulpit.* 

Dr.  Israel  Hildsheimer,  the  present  champion  of  orthodoxy, 
created  a  sensation  when  he  permitted  the  Palestinian  colonists  to 
work  in  the  Sabbath  year  on  no  other  grounds  except  that  these 
laws  could  in  our  times  not  be  carried  out.f  Marcus  Hirsch,  then 
chief  rabbi  of  Prague,  contrary  to  the  letter  and  spirit  of  the  rabbi- 
nical law^,  attended  the  funeral  of  Professor  Soyka,  although  the 
latter  had  suicided.  It  is  a  difference  between  the  orthodox  practice 
in  the  ceremony  of  divorce,  in  the  dietary  laws,  in  the  synagogue 
and  elsewhere  in  joro  inter  no,  and  between  practicing  it  when  higher 
interests  are  at  stake.  Therefore  we  will  not  find  any  orthodox 
congregation  in  civilized  countries  that  would  be  willing  to  carry 
out  the  rabbinical  law  which  makes  it  the  duty  of  the  rabbi  to 
excommunicate  every  trespasser  upon  even  the  least  of  the  rabbini- 
cal injunctions,  and  to  refuse  to  such  a  man  a  decent  burial. §  Practice 
has  made  these  laws  inoperative ;  it  has  simply  re-established  the 
Talmudic  principle  nS^Ti  "iplJJ  3i"iJD,||  custom  breaks  law.  And, 
when  R.  David  Ibn  Zimra  already  in  the  sixteenth  century  warns 
against  any  inconsiderate  application  of  disciplinary  measures,**  it 
is  on  the  ground  of  the  principle  that  a  law  cannot  be  executed, 
without  sometimes  doing  more  harm  than  good.  And  therefore  the 
explanation  of  the  word  JHJD  is  given  in  the  Talmud  as  a  law  that 


*Allg.  Isr.  Wochschr.,  Berlin,  28.  Aug.,  1896. 

t|V¥  JIT  I?  see  on  this  question.     The  Hebrew  Almanach  Achiassaf  189(1-7. 
p.  293. 

iJoreh  Deah  345,  1. 

t 

§e.  g.  if  he  does  any  work  on  the  afternoon  of  the  day  preceding  the  Pas- 
sover (Joreh  Deah  334.  43,  12;  see  also  ib.  :',34.  3). 

HJer.  Jebamoth  12.  1. 

**Respp.  Venice,  1749,  No.  187  r6xn  D'-i:m  pn»  rvrni?  inn  :rnjc6  tr  »"». 


22 

shall  not  he  taught  theoretically  but  may  be  tolerated  and  even 
made  tin-  basis  of  practical  teaching.*  So  it  is  acknowledged  that 
urgent  demands  of  the  time  are  more  important  than  theoretical 
laws,  and  R.  Maleachi  Ha-Kohen  Montefoscolo  gives  the  best 
expression  to  the  preponderance  over  theory  of  the  practice  in  laying 
down  the  principle  :  The  rabbis  have  a  right  to  change  a  law  of  the 

Thoraf  minn      -an  "i:>^  c^rn  ra  ro  tpv 


II.    TRADITION    AMD    PSEUDO-TRADITION. 

\Ve  have  so  far  attempted  to  prove  that  religious  life  could  not 
and  was  not  always  conducted  on  the  basis  of  traditional  law.  Con- 
sciously or  unconsciously  even  the  strictest  rigorists  had  to  depart 
from  the  rules  of  the  church.  Sometimes  they  would  acknowledge 
that  it  had  become  impossible  to  abide  by  the  decisions  of  the  law, 
sometimes  they  lulled  their  conscience  asleep  by  establishing  in  the 
case  that  they  had  decided  an  exception  to  the  rule.  Still  that  there 
was  a  tradition  that  could  and  would  under  normal  conditions  regu- 
late our  life;  in  their  opinion  admitted  of  no  doubt. 

However  in  our  age,  this  has  become,  to  say  the  least,  very  doubt- 
ful. 

1.  The  first  objection  to  the  belief  in  a  tradition  is,  that  it  pre- 
supposes that  the  Pentateuch  in  its  present  shape  was  written  by 
Moses,  and  that  Moses  during  the  forty  days  which  he  stayed  on  the 
Mount  of  Sinai  received  another  revelation  which  he  taught  Joshua 
and  which  was  orally  transmitted  from  generation  to  generation  un- 
til the  time  of  Jehuda  Hannassi,  when  these  laws  were  written  down. 
This  is  the  meaning  of  the  extravagant  statement  that  the  whole 
Bible  with  Mishna  and  Gemara  had  been  revealed  to  Moses,  \  and 
that  he  knew  even  what  a  disciple  in  the  latest  times  would  dis- 
cover,.^ and  that  the  commandments  with  all  their  detailed  ex- 
planations were  given  to  Moses  on  the  Mountf  of  Sinai. 


Jj-cm  N^  -jmo  jru»  Taanith  2M,  see  however  the  contrary 
.-tMteiiienl    in  I'.al.a  Hathra.  l.'jf)/,. 

•.In.  I  Mal.-achi  296. 

mkhotli    .V/.  accepted    literally   l>y   Ahraham    Sutro  in   his  Tl  niOH^D 
Frankliirt.  1862,  «  pamphlet   full  «.f  in  vecl  ives  against   reform.     <  l.'al.lx.nim- 

tdreher.) 

$Jer.  Me  y.  1  1..  :>. 

lira  a<l  Lev.  iY,.  !•;. 


23 

This  fanciful  assertion  was  later  on  limited  by  liberal  scholars,  but 
still  the  idea  of  an  oral  tradition  to  some  extent  is  admitted  by 
Maimonides,*  Saloma  Lurja,f  Lipmann  Heller,*  Nachman  Kroch- 
mal,§  HirschChajes||,  Zacharias  Frankel,**  Jacob  Bruell, ft  and  Isaac 
Weiss.JJ  This  belief  in  a  tradition  presupposes  the  belief  that  the 
Pentateuch  existed  as  an  entirety  at  the  time  of  Moses.  We  will  be 
hardly  willing  to  accept  such  a  statement,  after  that  which  modern 
criticism  has  labored  in  this  direction,  and  if  we  have  not  the  duty 
to  explain  away  the  difficulty  why  one  author  should  write  two  con- 
tradictory statements,  it  will  be  unnecessary  to  recur  to  a  traditional 
method  of  hermeneutics. 

2.  Tradition  rests  chieflv  on  the  great  synagogue  and  the  belief 
that  this  body  is  the  connecting  link  between  the  last  of  the  pro- 
phets and  the  oldest  known  authorites  of  the  rabbinical  period. 
That  such  a  synod  existed,  is  not  proven  but  it  is  evident  that  the 
need  of  it  existed  in  the  third  century, §§  when  the  rabbinical  law  was 


Introduction  to  the  commentary  on  the  Mishna.     See  the  thorough  dis- 
cussion of  his  views  in  Jair  Chajim  Bacharach's  Respp.  No.  192. 

tin  his  preface  to  NEp  &O3  Httta  *?V  D" 

t  Introduction  to  D'"1  JTlDDin  and  Edujoth  8,  7,  Aboth  1.  1.  Sotah  2,  2,  Temura 
2,  2  ;  3,  3.  Jebamoth  8,  3  ;  Zebachim  I.  3, 


Illn  1ic6nn  NUO  and  esp.  in  the  13th  chapter  of  his  DWZIJ  min  ,  called 

also 


**In  rwsn  '3~n  ,  p.  12,  alhough  it  is  not  quite  clear  how  far  back  Z.  F. 
would  date  the  laws  which  he  calls  TlK£ 


KUO  Frankfurt  1X7H  p.  3,  ff.  and  259. 

iiHis  apology  of  tradition,  esp.  Gesch.  d.  j.  Trad.  I.  77  see  also  his  Introd. 
I"  Saphra  Vienna  lsi'4  and  his  defense  of  Frankel."  Mielziner  (Introd.  p. 
tin  speaks  of  laws  that  date  back  to  times  immemorial.  Bruck  an  opponent 
of  Rabbinical  Judaism  takes  it  for  granted  that  there  must  have  existed  an 
oral  besides  the  written  law.  (Pharis.  Volkssitten  Frkfrt.  1840)  Reggio 
Bechinath  Ha-Ivabbalah  page  23. 

6§  Abraham  Krochmal  in  his  nVlNm  D<l11K'ia  Lemberg  1SS1.  p.  1(5  dates  the 
patriarchate  from  Gamaliel  I.,  but  it  scrrns  llial  the  a-pirations  for  sucli  an 
ullice  started  with  (-Gamaliel  II.  about  100  A.  ('.  and  were  not  recognized  be- 
fore Jehuda  I.  about  2UO  A.  (,'.  liad  succeeded  to  make  the  school  of  Seppho- 
ris  the  central  seat  of  authority. 


24 

regarded  authoritative,  and  in  order  to  be  authoritative  it  had  to  be 
traditional,  and  if  it  was  traditional,  there  had  to  be  an  uninter- 
rupted chain  of  tradition  from  Moses  down  to  the  age  of  the  com- 
piler of  the  collection  :  "  Sayings  of  the  Fathers." 

Against  the  belief  in  such  a  body  we  have  first  of  all  the  negative 
argument  e  silentio,  then  the  fact  that  the  Synhedrin  in  historic 
sources  is  a  judicial  court  only  and  as  such  only  it  is  thought  of  in 
the  idealized  prototypes  in  the  Pentateuch.*  As  a  body  for  relig- 
ious legislations  and  for  the  interpretation  of  the  law  it  existed 
only  in  the  dreams  of  Rabban  Gamaliel  and  his  successors  whose 
highest  aim  was  the  establishment  of  a  religious  authority. 

The  historical  Synhedrin  was  presided  over  by  the  high  priest,! 
and  at  least  partly,  and  sometimes  entirely  composed  of  SadduceesJ 
who  rejected  tradition  altogether.  The  laws  attributed  to  the  men 
of  the  great  synagogue  are  of  late  origin,  none  of  which  can  be 
proven  to  have  existed  before  the  destruction  of  the  temple,^  while  in 
most  instances  these  laws  can  only  have  existed  after  the  destruc- 
tion of  the  temple.  I 


*Deut.  17,  8-13.  So  Ibn  Esra  -QT  CBItrn  DJ?  Wee  on  this  question  I.  P.  Reg- 
ain in  his  remarks  mi  Loon  Modena's  f>2D  ^>1p  in  rnn  nmu  p.  134  iT.  against 
tin-  Talmudic  interpretation  Ber.  10,  b\  Sabh.  2,'!,  a.  Sukka  46,  a. 

+  Matth.  26,  3,  ">7.  Acts  23,  2.  24,  1.  IMakk.  12,  6.  See  Frankel  Par'khe  ha- 
Mishna  p.  12  Kuenen  :  Over  de  samcnstelling  van  het  Sanhedrin  in  Yersla- 
;i  M.-dedeelinyen  I >.  K.  Akademic  etc.  1866  p.  131-168.  Schuerer:  His- 
lory  of  the  Jewish  people  etc.  Her/og  n.  IMitt  Real  encyclopaedic  f.  prot. 
Tin -.,1.  2nd  ed.  XV.  101.  Kiehm:  llandw.erterhuch  d.  bibl.  Alterth,  2nd  ed. 
II.  Kil'.i. 

jActs   1.  1.  IT.  5,  17,  84.  28,  6.    Jos.  Antiq.  13, 10,  5-6  and  13,  16.  2.     Kiddu- 

shin  (it;/,.     Sec  <iraet/  III.  p.  6S4  IT. 

3o  Frankel  1.  e.  p.  ">  who  says  tlnit  only  the  passage  in  Aliolh  I.  2  which 
emit  a  ins  the  general  principles  I'.ir  the  conduct  of  the  ra  bin's,  viz  :  to  be  cau- 
t  imis  in  rendering  judgment, 'to  spread  the  law.  and  to  [irotect  it  by  a  fence 
of  new  regulations  is  hi>torical.  So  Kroc.hinal  Tn"J1Q  I'.ruell  nrj'DH  N"QE>  ]>•  •"> 
tf.  \\'eiss.  I.  o-l  IF.  Still  this  rule  \i\-.\\  also  be  an  ideal  of  the  third  century, 
when  Aboth  was  written,  transferred  to  antiquity. 

||E.  g.  the  Tephilla,  which  is  ascribed  to  them,  Her.  :i.'i«.  .Meg.  1X7,,  al- 
though it  il  fall  of  allusions  to  conditions  thai  could  only  have  exist  ed  after 
the  destruction  of  the  temple.  The  way  out  of  this  dilliculty.  according  to 
which  only  the  lir>t  three  and  the  last  three  benedictions  were  made  by  the 


25 

Simon  the  Just  the  only  name  of  a  member  of  this  Synhedrin  is 
no  doubt  Simon  the  Makkabee*  who  in  one  instance  unmistakably 
is  referred  to  by  that  namef  while  in  other  instances  there  is  a  quid- 
proquo  not  rarely  found  in  historical  reports  in  the  Talmud,  when 
the  rabbis  identified  Cyrus,  Darius  and  Ahasverus,*  or  Alexander 
and  Ca?sar£  or  Flavius  Clemens  and  Akylas  and  the  latter  with  the 
unknown  author  of  the  Aramaic  version  of  the  Pentateuch. ||  So 
evidently  Simon  the  Just  was  identified  with  Simon  the  Makkabee, 
the  latter  being  the  oldest  name  preceding  the  Pharisam  development 
of  Judaism  which  originated  under  the  reign  of  John  Hyrkan. 

3.  The  impossibility  of  any  oral  law  is  evident  from  the  fact  that 
the  written  law  is  spoken  of  as  sufficient,  and  admitting  of  no  addi- 
tion or  diminution.** 

This  is  the  view  of  the  Sadducees  and  of  the  Karaites,  and  strong- 
ly advocated  by  Leon  Modena  supported  by  arguments  which  need 
no  additional  evidence.  Our  apologetes  of  tradition  recur  to  argu- 
ments which  are  so  arbitrary  that  they  are  refuted  by  their  own  sup- 


great  Synagogue.  (Zunz:  Zur  Gesch.  u.  Liter,  p.  380;  Graetz  II.  2.  188)  is 
simply  a  solution  worthy  of  the  old  Derasha,  and  not  better  than  the  T.al- 
mudic  report  that  the  Tephilla  was  written  by  the  men  of  the  great  Syna- 
gogue and  restituted  by  R.  Gamaliel,  after  it  had  been  forgotten.  Other 
facts  referred  to  the  great  Synagogue,  as  the  division  of  the  Bible  into 
chapters  and  verses,  which  Heilprin  p.  133  Y'nD  als°  understands  as  a  resti- 
tution of  the  original  manuscripts,  need  hardly  a  serious  refutation. 

*L(X'w  in  Ben  Chananja  I.  198. 

tTosefta  Sota  Ch.  13.  p.  31!»,  in  Weiss.  I.  86,  note  2  erroneously  quoted  Ch.  3. 
The  text  is  evidently  corrupt  in  many  passages.  Still  it  is  clear  that  Simon 
the  Just  is  not  the  high-priest  known  by  that  name,  but  either  Simon  the 
Makkabbee  or  a  later  one. 

iRosh  ha-Shanah  36.     See  Dei  Rossi,  Meor  Enajim  I.  214. 

-ukkah  516.  The  parallel  passages  in  Dei  Rossi  1.  c.  I.  166,  where  the 
author  attempts  to  prove  that  Alexander  who  is  said  to  have  killed  the 
Jews  of  Alexandria  is  Trajan,  which  is  quite  possible. 

||See  the  excellent  discourse  of  Graetz  on  that  subject,  which  is  a  master- 
piece of  historical  research  IY-3  p  403.  The  recent  work  of  Friedman.  On- 

kflos  und  Akylas,  Vienna  isiifj  has  not  shaken  any  of  G's  results. 

**Deut.  4.  2;  see  Geiger;  Leon  do  Modena.  in  the  Hebrew  part  p.  26 
Hechaluz.;  V.  28,  sq. 


26 

positions,  so  S.  K.  ITirsch  *  *  says  that  the  Talmudic  authorities  in 
whose  names  certain  laws  are  recorded,  only  mean  to  reproduce  the 
tradition,*  e.  g.  when  the  Talmud  says:f  Three  laws  must  be  ob- 
served even  at  the  risk  of  ones's  life,  viz.  the  prohibition  againt  idol- 
atry, murder  and  incest,  this  is  not,  as  Graetz*  asserted,  a  law  made 
in  the  time  of  the  Hadrianic  persecution,  but  is  tradition,  taught  by 
Moses,  and  handed  down  from  generation  to  generation,  although 
the  Talmud  records  it  as  a  resolution  passed  by  a  meeting  of  rabbis 
in  a  secret  session  held  in  the  house  of  riTHJ  in  Lydda.  When 
Rabbi  Jochar.an  interpreted  this  resolution  as  meant  for  times  of 
peace  only  while  in  times  of  religious  persecution  even  for  the  least 
law  one  would  have  to  sacrifice  his  life,  even  this  interpretation  is  a 
tradition  handed  down  from  Moses  and  just  accidentally  preserved 
by  R.  Jochanan.  When  Rab  interprets  the  words -n^p  JTI2CD  as  a 
change  of  the  shoe  laces,  this  too  according  to  S.  R.  Hirsch  is  a  tra- 
dition. The  next  thing  for  this  believer  would  have  been  to  say 
that  when  R.  Isserlein  of  Marburg  interpreted  the  words  rnWn  nj?w' 
to  mean  when  the  intention  of  the  law-giver  was  to  make  the  Jews 
abandon  their  faith  mn  1^3pn^  DrUID  CN  §  this  also  was  a  tradi- 
tion which  Israel  Isserlein  3,000  years  after  Moses  found  necessary 
to  promulgate. 

The  strongest  arguments  against  the  probability  and  the  possi- 
bility of  an  oral  law  are  those  adduced  to  prove  its  existence.  The 
argument  of  R.  Jehuda  Hannassi,  taken  from  the  passage,  "Thou 

shalt  kill  of  thy  herd  and  of  thy  flock, as  I  have  commanded 

thee,"||  which  according  to  K.  Jehuda  Hanassi  means  that  Moses 
had  orally  commanded  the  rites  of  Shehita,**  is  extremely  weak,  for 
the  words,  "  as  1  have  commanded  thee,"  refer  to  verse  14,  and  a>-e 
a  repetition  of  the  injunction  that  sacrifices  shall  only  be  offered  in 
the  one  holy  place,  while  animals  for  food  may  be  slaughtered 
everywhere. 


*See  Jeschurun  18>.  IV.  L'X'jff. 

rSynh.  7  \n. 

iiinift/  IV    8,  [>.  1">7. 

$Thermintth  h:i-I>«'shen  II     N» 

II Dent.  I'-'.  '-'1. 

**Chullin  28c. 


27 

Zacharias  Frankel,  in  his  Introduction  to  the  Mishna,  carefully 
avoided  any  definite  statement  as  to  the  origin  of  the  rabbinical  law. 
He  is  satisfied  to  bring  evidences  from  older  authorities  that  not 
everything  that  is  called  Sinaitic  tradition  came  really  from  Sinai.* 
The  positive  answer  to  the  question  how  much  of  the  rabbinical 
law  is  to  be  dated  back  to  Moses,  Frankel  seems  to  have  evaded, 
although  this  precaution  did  not  prevent  S.  R.  Hirsch,  the  cham- 
pion of  traditionalism,  from  denouncing  Frankel's  book  as  heretical. 
It  is  sufficient  for  Hirsch  that  Frankel  had  said  the  men  of  the  great 
synagogue  had  established  their  laws  on  an  exegetical  basis, f  which 
would  at  once  do  away  with  all  tradition.  Frankel  however  proved 
the  ancient  origin  of  many  laws  by  pointing  out  the  style  of  the 
Mishna,  e.  g.,  a  gate  that  is  higher  than  20  cubits  shall  be  lowered, \ 
which  presupposes  that  it  must  have  been  an  old  law  to  close  the 
entrance  into  a  street  on  Sabbath  in  order  to  make  it  appear  as  one 
courtyard.  Or :  When  shall  we  read  the  Shema?§  which  presup- 
poses that  it  had  been  an  old  custom  to  recite  the  Sh'ma  twice  a 
day.  This  is  undoubtedly  true,  but  it  does  not  follow  that  these 
laws  originated  previous  to  the  second  century.  In  the  instance  of 
the  Sh'ma,  it  is  clearly  stated  that  it  had  its  origin  in  the  opposition 
of  the  rabbis  to  Christianity.! 

As  an  illustration  we  may  recite  the  following  instance.  When 
Moses  Isserls**  (d.  1572)  records  the  law  that  the  Qaddish  shall  be 
recited,  although  none  of  the  worshippers  present  had  during  the 
last  year  lost  his  father  or  his  mother,  it  follows  that  the  Qaddish 
of  the  orphans  was  a  universal  custom  during  the  sixteenth  century, 
but  it  does  not  follow  that  this  custom  was  known  in  the  fourteenth, 
and  it  really  seems  to  be  not  older  than  the  fifteenth  century. 

Another  apologete  of  the  authenticity  of  rabbinical  tradition, 
although  to  a  very  moderate  degree  is  Isaac  Hirsch  Weiss.ff  His 


*Frankel  1.  c.,  p.  21. 

tlb.,  p.  5. 

iErubin  1,1. 

§Berakhoth  Ch.  I.  1. 

HJer.  Ber.  I.  8.,  fol.  3c  p'O 

**Orach  Cliajim  132,2. 

ttGesch.  d.  j.  Tr.  I,  5  ff.  II,  196,  ff. 


28 

arguments  will  hardly  stand  the  test  of  criticism,  even  if  tested  by 
the  sound  scientific  results  of  his  own  investigation.  His  argument 
th.it  the  words,  "He  shall  write  her  a  hill  of  divorcement  "*  prove  that 
there  must  have  existed  a  traditional  law  concerning  the  form  of  such 
a  document,  is  an  utter  failure.  By  such  a  method  we  could  prove 
that  the  thirteen  lines  of  this  documentf  are  a  traditional  law 
originating  from  Moses.  The  evidence  would  rather  point  the  other 
way,  viz.,  that  the  law-giver  established  a  new  law  in  order  to  abolish 
the  general  custom  to  divorce  a  wife  without  recording  the  act,  and 
since  this  law-giver  is  not  Moses,  the  latter  could  not  have  taught 
this  law  with  some  additional  oral  explanations.  On  the  other 
hand,  it  is  a  general  fact  based  on  psychological  laws  that  certain 
religious  customs  become  so  general  that  they  finally  are  believed 
to  be  laws  dated  back  to  the  founder  of  this  religion. \ 

The  only  way  to  solve  the  question  about  the  origin  of  the  tradi- 
tional law  is  given  in  the  words  of  R.  Jochanan,  frequently  quoted 
by  Weiss  :  If  you  find  a  law  which  seems  strange,  do  not  contest  it, 
for  many  laws  were  given  to  Moses  on  the  mount  of  Sinai,  and  all 
are  embodied  in  our  Mishna.jj  Criticism  of  certain  traditional 
customs,  as  not  consistent  with  scriptural  laws  or  as  not  authentic, 
was  met  by  the  argument  that  these  customs  were  based  on  oral 
tradition,  and  so  the  belief  in  an  oral  tradition  was  established. 
Even  in  Talmudic  times  we  find  the  complaint  that  laws  derived 
from  scripture  by  arbitrary  exegetical  methods  were,  in  order  to 
refute  all  objections,  simply  attributed  to  Moses.  It  is  told  in  the 
Talmud  that  Moses,  when  he  went  to  heaven  to  receive  the  Thora, 
K;IW  God  busy  making  crowns  on  some  of  the  letters  of  the  Thora. 
"  Who  is  retarding  thy  work?  "  Moses  asked.  "  There  will  come  a 
man,"  God  replied,  "Akiba  ben  Joseph  is  his  name,  who  will  derive 
from  every  dot  on  the  i  ppl  pp  hi  by  mountains  upon  mountains 
of  laws."  Said  Moses,  "Ruler  of  the  world,  let  me  see  this  man." 


*Peut.  iM.  1. 

>en  Haezer  ILT>.  11,  ]± 

iThe  Lord's  supper  is  based  on  such  nn  attempt  to  refer  the  retention  of 
the  Passover  rite  back  to  .b-Mi>.  Tiie  Ccrniaiiic  mid-winter  festival  is 
ox  phi  ned  from  the  birthday  of  Jesus.  In  the  religions  pract  ice  of  I  he  .lews 
such  instiinces  abound. 

$Jer.  Peah  II.  I. 


29 

Said  God,  "  Go  back."  So  Moses  went  and  sat  down  back  of  the 
fifteenth  row  of  seats,  and  did  not  understand  wbat  he  (R.  Akiba) 
was  saying.  When  R.  Akiba  had  said  something,  his  disciples  said, 
••  Rabbi,  whence  doest  thou  know  that? "  and  the  Rabbi  replied. 
"  This  is  a  Mosaic  tradition."  Then  Moses  recovered  and  said  to 
God,  "  Thou  hast  such  a  man  and  givest  the  Thora  through  my 
hands,"  but  God  said,  "  Keep  silent,  this  is  my.  will.''  Now  Moses 
said,  ''Thou  hast  shown  me  the  man,  show  me  his  reward,"  and 
God  said,  "Turn  back,"  and  Moses  turned  back,  and  saw  that  they 
tore  his  flesh  with  iron  hooks  and  he  said,  "  Is  this  the  Thora  and 
this  its  reward?"  but  God  said,  "  Keep  silent,  for  this  is  my  will."* 

The  legend  may  have  been  altered  from  its  original  form,  but  still 
it  is  evident  that  it  is  meant  as  a  protest  against  R.  Akiba's  arbitrary 
exegesis,  and  against  the  claim  that  the  results  of  such  an  arbitrary 
exegesis  are  to  be  considered  as  traditional  laws,  and  it  shows 
further  that  the  author  of  this  legend  or  parable  meant  to  say  that 
Mi-ses  would  not  recognize  his  own  Thora  after  the  treatment  which 
it  received  from  the  hands  of  R.  Akiba,  and  that  the  terrible  death 
which  the  latter  had  suffered,  was  partly  deserved  by  the  distortion 
of  the  word  of  God  which  he  had  established. 

Should  we  in  spite  of  all  evidence  to  the  contrary  grant  the  sup- 
position that  there  was,  or  at  least,  that  there  may  have  been  an 
oral  law,  we  would  have  to  admit  that  many  of  the  oral  laws  which 
are  stated  as  such,  are  of  late  origin.  First  of  all,  contradictory 
statements  can  not  be  traditional,  for  at  least  one  of  them  must  be 
erroneous.  Still  both  Talmud  and  Midrash  maintain  that  the  passage 
in  Ecclesiastes,f  "  The  words  of  the  wise  men  are  given  from  one 
shepherd  "  proves,  that,  though  one  declares  a  thing  to  be  prohibited 
and  the  other  to  be  allowed,  one  declares  a  thing  unclean  and  the 
other  clean,  even  these  contradictory  statements  are  the  words  of 
God.: 

Similarly  it  is  said  of  the  dissensions  between  the  Hillelites  and 
the  Shammaites  that  the  opinions  of  both  schools  are  the  words  of 
the  living  God,  although  the  opinions  of  the  Hillelites  are  norma- 


*Mennclioth  ->\th. 


Uvoheletli  rabba  ad  locum  :  t'hagigah 


30 

tive.*  This  is  evidently  impossible,  for  if  Moses  explained  as  the 
Shamniaites  teachf  the  law  of  divorce  in  the  sense  that  adultery 
only  constituted  a  legal  ground  for  divorce,  it  is  impossible  that  he 
should  have  explained  that  the  slightest,  shortcoming  in  the  conduct 
of  the  wife  gave  the  man  a  right  to  obtain  a  divorce,  as  the  Hillelites 
teach. f 

*Jer.  Berakhoth  I.  fol.  8c.  The  inference  of  Weiss  II,  71  that  the  Bath 
<>ol  which  is  s:iid  to  have  decided  in  favor  of  the  Hillelites  is  a  legendary 
expression  of  either  K.  .lochanan  ben  /akkaj's  or  R.  Gamaliel's  decision  is 
hardly  tenable,  as  even  K.li.'s  son  and  successor,  Simon  II,  had  still  to 
contend  with  t  he  opposit  ion.  and  it  was  only  R.  Jehuda  I  who  finally  over- 
came it.  The  real  meaning  of  the  Haggada  is.  that  from  the  beginning  tin- 
controversy  bet  ween  Sliainmaites  and  Hillelites  was  a  merely  theoretical 
one.  so  that  it  was  not  by  human  but  by  divine  authority  that  practice 
accepted  the  Hillelite's  views.  It  seems  to  in-.'  that  Hillelites  and  Sham- 
maites  do  not  go  back  to  the  men  whose  names  they  have  adopted,  but  are 
factions  of  the  Pharisees  which  originated  only  after  the  destruction  of  the 
temple,  and  were  divided  on  the  attitude  which  they  took  towards  Chris- 
tianity, the  Sliammaites  with  K.  Klie/ep  b.  Hyrkanos  standing  nearer  to 
the  Christians  and  partly  amalgamating  with  them  ;  the  Hillelites.  with  R. 
Gamaliel  as  leader,  opposing  them.  I  hope  to  devote  to  this  question  a 
separate  88 

it  tin  !>()(/.  The  S  h  a  m  ma  i  tic  doctrine  is  identical  with  Mat  t  hew  •">.  Ml. ."._' : 
while  R.  Akiba  as  radical  opponent  of  Christianity,  teaches  that  one  may 
divorce  his  wife  without  any  other  reason  but  because  he  likes  another 
woman  better.  K.  Akiba's  opposition  to  Christianity  is  already  manifest 
in  his  literal  exegesis,  in  his  opposit  ion  to  intermarriages  with  heathens. 
Mekilatha  Kx.  !•">.  IL'..  ed.  Weiss  p.  44<i.  which  Judeo-(  'hrist  ians  tolerated  ( I. 
Cor.  7.  !_,  IT.  his  strict  prohibition  against  apocryphal  literature  D'HSD 
D'JlV'n  (Synh  '.HI-/,  his  ridicule  of  the  Christian  miracles  in  his  conversation 
wit  h  ":v.  Aboda  xara  .~>5a)  no  doubt  the  representative  of  the  Stoics.  \\  h.»" 
founder  was  Zeno,  his  opposition  to  the  allegorical  explanation  of  circum- 
cision (comp.  <  ien.  Ilabba  -Hi  Sabbath  I  OS,/  with  Horn,  l1 :  i'S.  L".»;  ;  his  ridicule 
of  baptism,  praising  Israel  happy  that  are  cleaned  by  their  father  in  heaven. 
,iid  not  by  Jesus  Christ  (Matthew.  L's.  lit;  Mark  Hi.  16);  his 
connection  with  the  four  men  who  entered  the  Pardes  (Chagiga  146), one  of 
whom,  Acher,  is  Jesus.  a<  I  shall  prove  in  another  place  while  Ben  Xoma. 
who  saw  the  heaven  open  and  the  spirit  of  <  iod  descend  like  a  dove  lib. 
John  [,82,38,  !•">"'  and  l'..-ii  A/.aj  the  celibalaire  <  .Feb.  »',:;/, ,  >tood  partly  on 
Christian  ground.  (See  \\Vis?  II,  I  IJ.  note  ]  .,  K.  Tarphon  (Tryphon).  a 
convert  to  tin-  Hillelites  from  the  Sliammaites  is  another  opponent  to 
Christianity:  (  Sabbat  li  1  ]•«/  i  who  ad\  i>es  to  burn  t  he  ( iospels  D'JV^J— the 
Talmudic  explaiuit  ion  of  B»H^J  as  margins  is  a  bad  guess— wit  hout  regard 
to  the  pas.-ai,'e>  from  holy  scripture  ijUoted  in  it. 


31 

Therefore  from  early  times  already  we  find  limitations  to  this 
belief.  Maimonides  in  the  introduction  to  the  commentary  on  the 
Mishna  teaches  that  a  law  which  is  the  subject  of  controversy  can 
not  be  traditional.*  Rabbenu  Asher  says  that  the  term  Mosaic 
tradition  in  many  cases  means  that  the  law  is  as  universally  accepted 
as  the  laws  of  Moses,  f  Salomo  Lurja,  although  he  denounces  Ibn 
Ezra  for  rejecting  the  rabbinical  exegesis,  holds  the  same  view  as 
Maimonides, \  and  Aaron  ibn  Abraham  Chajim  in  his  introduction 
to  Saphra,jj  and  Lipmann  Heller  in  his  commentary  on  the  Mishnaj) 
also  accept  the  more  liberal  view  that  a  statement  which  is  contro- 
verse  cannot  be  regarded  as  traditional.  That  the  orthodox  view  is 
still  held  cannot  surprise  us  when  we  remember  that  the  great  body 
of  Christians  believe  in  the  authenticity  of  the  gospel  history, 
although  the  two  pedigrees  of  Jesus  are  contra'dictory,  and  believe 
in  the  authenticity  of  Jesus'  teachings  although  in  such  vital  points 
as  in  regard  to  the  validity  of  the  law  or  in  regard  to  the  position 
of  Christians  to  the  heathen  world  Jesus  is  credited  with  statements, 
one  of  which  expresses  just  the  opposite  of  the  other.**  Similar!}' 
the  Catholic  church  holds  the  infallibility  of  the  pope,  although  it 
was  a  pope  who  condemned  the  Copernican  system  as  an  error,f  f 
and  another  pope  who  solved  the  economic  question  by  an  anathema 
against  Socialists. ++  while  other  infallible  popes  meantime  have 
retracted  the  opinions  of  their  infallible  predecessors  "n^ 


nan  xirrntro  ^SD  paipD  |na 

tin  DlNIpE  vn  printed  in  the  12th  volume  of  our  current  Talmudic  edit- 
tions,  quoted  in  Frankel  p.  20. 

iSee  his  introduction  to  p"3  ftch&  ^&  D\ 
OpHX  pip  Venice  1600,  Dessau  1742. 
IIEdujoth  8,  7  and  other  passages.     See  p.  •">. 

**See  my  essay  on  "  Tlip  origin  of  Chr."  in  American  Israelite,  Jan.  30  and 
Feb.  (.5,  189(i. 

ttUp  to  17-")7  all  books  teaching  the  revolution  of  the  earth  around  the  sun 
were  on  the  Index.  See  Liter,  on  Galilei's  Trial  in  Holxman  u.  Zojpfel  Lex. 
f.  Theol.  p.  311. 

IX  in  Syllabus. 


32 

Authenticity  of  the  law  presupposes  its  ancient  origin,  e.  g.,  if  the 
episcopal  system  of  church  government  is  the  proper  one.'  then 
Jesus  must  have  established  it.  Similarly,  if  the  rabbinical  laws 
are  correct  and  are  the  proper  explanations  of  the  Thora,  then  Moses 
must  have  recorded  them  on  the  Mount  of  Sinai,  and  so  we  are 
repeatedly  told,  that  the  law  with  all  its  details  JTTTO^ni  ITpnpT* 
is  transmitted  through  an  uninterrupted  chain  of  traditional  author- 
ities from  the  times  of  Moses.  We  are  told  that  the  scribes,  i.  e., 
the  supposed  successors  of  Ezra  who  are  believed  to  have  preserved 
the  tradition  from  Ezra  up  to  the  Maccabean  time  —  introduced  as 
a  new  custom  had  come  from  Moses,  and  in  one  special  instance  we 
find  in  the  Talmud  the  historical  monstrosity  that  the  book  of 
Ksther  and  the  custom  to  read  it  in  the  synagogue  on  Purim  dates 
hack  to  Moses.  f  It  is  further  maintained  that  the  whole  Bible,  the 
Mishna  and  the  Talmud*  even  what  the  least  of  the  disciples  would 
lay  down  in  the  latest  times  were  revealed  to  Moses,  £  and,  when  it 
is  said  of  Rabhan  Jochanan  hen  Zakkaj  that  he  knew  the  problems 
put  up  by  Raba  and  Abhaj  three  centuries  after  his  time,  |  it  seems 
that  the  idea  was  that  nothing  new  had  ever  been  established  in 
religion,  although  at  the  same  time  the  statement  is  a  hyperbolical 
glorification  of  the  actual  founder  of  Rabbinism. 

Later  legends,  not  satisfied  with  these  statements,  make  Abraham 
observe  all  the  rabbinical  laws,  including  the  subterfuges  by  which 
the  biblical  laws  were  evaded.  pV'BOn  <ID1"II'J?.**  It  is  the  same  spirit 
which  created  the  belief  that  Abraham  had  written  the  daily  morning 
prayer,  or  at  least  had  made  it  a  duty  to  pray  every  morning.  f  f 

*Saphra  Lev.  L'ti.  U>  Kashi  il>.  i.'.'),  1. 
tSiri.noth  :{'.i'/  :  .Icr.  Meg.  7,  7. 
iBer.  ")(i. 

lit'/:  .ler.  .Me;:.  :'. 
i.athra  \:\\<i. 


**.Ioma  L'S-:>.     I  low  sincerely  these  extravagant  statements  were  believed 

up  to  our  century  we  can  866  from  the  herashas  of  .lehnda  Rosalies 
died  172S)  D'3Y1  ntinS.  who  asked  the  question  how  Abraham  could  have 
..list-rved  the  Sabbath  sine.-  the  Tim.  says  that  a  non-lew  who  observes  the 
Salilnith  is  guilty  of  death.  Similar  \visdom  is  found  in  Salman  Cohen's 
rabbis  of  I-'unrth  (  d.  IM'II,  I  (,-rashas  D'O 

ttBer.  2i;/i. 


33 

A  similar  historical  monstrosity  is  the  assertion  that  the  ortho- 
graphical peculiarities  of  the  biblical  text  are  of  Mosaic  origin.  So 
it  is  stated  that  the  final  letters  are  to  be  dated  back  tcr Moses,*  but 
this  is  an  assertion  which  can  not  be  accepted,  as  almost  all  inscrip- 
tions and  coins  show  the  exclusive  use  of  the  old-Hebrew  alphabet, 
while  the  square  characters  came  in  use  only  since  the  first  century 
];.('.  Equally  impossible  is  the  Talmudic  report  tbat  D^.SID  S","^ 
.„..  si,.  «tyr\2  paVO  «Vl  pip  D^SID  •Vl^JJl  are  transmitted  from 
Moses. f  We  are  not  certain  about  the  meaning  of  all  these  terms 
as  the  tradition  on  these  terms  may  be  younger  than  the  statement 
itself,  and  therefore  may  be  an  attempt  to  explain  a  Barajtha,  the 
original  meaning  of  which  was  forgotten  just  as  the  attempt  to 
explain  the  Greek  words  ^prVH  and  '•pWlSK  from  the  Aramaic^ 
shows  that  the  true  etymology  was  forgotten.  However,  if  we  follow 
the  traditional  explanation  DS"1S1D  KIpD  means  the  pausal  forms 
and  uTSID  "iliSJ?  means  certain  passages  in  which  a  '  was  omitted. jj 
To  illustrate  the  latter  some  passages  from  Psalms  are  quoted,  just 
as  to  illustrate  the  cases  where  a  word  is  added  to  the  Massoretic 
text  j^TC  K^'i  p'p  and  where  a  word  is  stricken  from  the  Mas- 
soretic text  pip  fr^l  j'OTC  passages  from  the  prophets  are  quoted. 
If  we  should  be  willing  to  uphold  the  theory  of  Mosaic  tradition  as 
found  in.  the  Talmud,  we  would  have  to  believe  what  the  Talmudic 
Haggadahf  says  that  Moses  received  already  the  Prophets,  the 
Hagiographa,  the  Mishna  and  Gemara.  It  is  only  under  this  con- 
dition that  we  could  understand  the  Talmudic  statement  that  one 
who  denies  one  single  rabbinical  interpretation  or  the  correctness 
of  one  inference  a  minore  ad  mnjus,  or  by  anology  is  under  stricture 
of  "the  word  of  the  Lord  he  has'despised  "_and  excluded  from 
future  happiness.** 

Samson  Raphael  Hirsch  was  therefore  perfectly  right  when  he 
protested  against  the  election  of  Dr.  Kroner  to  the  rabbinical  office 


*Jer.  Megillah  I,  9.     Babbi  Sabbath  104o.     On  the  difference  between  the 
two  Talniuds  and  other  parallel  pas-u^es  -<je  Schorr  in  Hechaluz  IV.  33. 
tNedarim  37/>. 

iB.  Mezia  19«,  S.  Levy's  U'n-rterbuch  >•  v- 

§See  on  this  difficult  expression  Weiss  I.  »il.  f.  and  Kohnt  Arucli  s.  v. 

HBer.  60. 
**Synh.  99a. 


at  Treves,  because  the  disciples  of  the  Breslau  school  had  learned 
to  regard  the  rabbinical  laws  from  a  historical  ]>oint  of  view,  i.e.,  to 
explain  them  irom  conditions  of  the  age  and  from  individual  points 
of  view  held  by  the  author.*  Hirsch  was  also  right  when  he  pro- 
tested against  the  fourth  volume  of  Graetz's  history  of  the  Jews 
because  the  author  had  explained  the  resolution  passed  by  the 
Council  of  Lydda  which  restricted  the  duty  of  martyrdom  to  idol- 
atry, incest  and  murder  from  the  Hadrianic  persecutions;  while 
according  to  Hirsch's  view  on  tradition  this, restriction,  like  all 
rabbinical  laws,  originated  from  Moses,  or  more  properly  speaking 
were  revealed  to  Moses  on  the  Mount  of  Sinai  and  handed  down  by 
oral  tradition  from  generation  to  generation.! 

Hirsch  was  also  right  when  he  sounded  the  bugle  call  to  gather 
the  orthodox  forces  against  Frankel's  introduction  to  the  Mishna,J 
because  the  latter  had  observed  a  very  significant  silence  in  regard 
to  the  Mosaic  origin  of  the  rabbinical  laws,  a  silence  which  after  the 
attack  made  by  Hirsch  he  ought  to  have  broken,  even  according  to 
his  vindicators,  S.  L.  Rappaportjj  and  Samuel  Freund.||  Frankel 
spoke  only  of  the  mysterious  scribes  (Sopherim)  as  the  founders  of 
the  rabbinical  law,  and  said  that  these  men  after  mature  delibera- 
tions had  established  the  traditional  exegesis  1"iDW  PI^"  a^lVS" 
Jms  vJjtf  '•SD  njHl  mayisa  but  he  failed  to  add  that  the  laws 
derived  by  such  methods  from  scripture  had  existed  before.** 
Frankel  further  explained  the  excommunication  by  Rabban  Gama- 
liel of  R.  Eliezer  ben  Hyrkanos,  which  according  to  the  Talmudic 
reportff  was  due  to  a  diversity  of  opinion  on  the  question  whether  a 
tile-stove  which  had  been  defiled  becomes  clean  when  the  tiles  are 


*Jued.  Liternturblatt.     is"(>.  1  ">s. 


iJeshurun  ISC.I.Jan.     This  controversy  produced  t(uitea  literature,  which 
would  deserve  a  special  review. 


•in  now  Ditr  -an  Prague,  ism.  p.  -_>s. 

HFreimd.  a  very  ijiieer  cliaracler.  attacked  Hirsch  with  insult  iiiy  words, 
lint  refused  to  sign  (lie  resolutions  in  which  the  congregation  of  Prague 
expressed  confidence  in  l-'nmkel  in  Hirsch's  Vorlseufige  Abrechnung,  p.  29. 

**Frankel,  p.   1. 

ttii.  -Me/ia  .V.i,i,  f. 


35 


taken  apart  and  the  stove  rebuilt  •WDJ?  h&  n^H,  as  a  victory  of  the 
Hillelites  over  the  Shammaites,  while  this  question  only  served  as 
an  occasion  to  settle  the  dispute  between  the  rival  schools  by  a 
majority  vote.*  Hirschf  rightly  says  that  the  rabbis  who  made  use 
of  such  diplomatic  methods  to  settle  religious  controversies  could 
not  claim  our  undivided  respect  nor  could  laws  established  by  such 
methods  command  our  undisputable  obedience.  Still  even  Frankel 
and  his  followers  had  only  discovered  part  of  the  truth.  The  con- 
troversy about  the  Akhnai-stove  is  altogether  a  fiction  by  which  the 
latter  rabbis  disguised  the  real  cause  of  R.  Eliezer's  excommunica- 
tion, and  this  real  cause  was  R.  Eliezer's  as  the  whole  school's  of  the 
Shammaites'  leaning  towards  Christianity  which  is  apparent  from 
the  legendary  narratives  concerning  R.  Eliezer  as  well  as  from  some 
of  the  laws  which  bear  the  name  of  R.  Eliezer.J 

It  has  to  be  admitted  that  if  the  historical  method  of  Frankel 
and  his  followers  be  true,  the  whole  idea  of  a  tradition  falls  to  the 
ground,  although  Frankel  himself,  partly  because  of  his  emotional 
religiousness  which  he  displayed  in  his  attitude  during  the  contro- 
versy on  the  second  edition  of  the  Hamburg  prayerbook§  and 
towards  the  Frankfurt  rabbinical  conference,  ||  and  partly  because  of 
his  adversity  to  all  polemical  literature,  had  not  the  slightest  desire 
to  enter  into  a  question  that  would  involve  him  in  an  endless 
literary  feud,  and  so  he  seems  to  have  been  opposed  to  the  settle- 
ment of  the  question  about  tradition,  even  for  himself. 

We,  however,  have  no  desire  to  dwell  in  the  dimly-lighted  atmos- 
phere of  an  emotional  attitude  towards  the  rabbinical  law  without 
settling  the  question  scientifically,  and  in  order  to  do  this  we  will 
quote  three  instances;  two  of  which  are  so  old  that  they  will  serve 


*Frankel,  p.  89. 
rHirsch,  1.  c.  p.  7. 

iWeiss  11.87  refers  to  a  special  investigation  which  M.  Friedmann  devoted 
to  this  subject,  but  as  M.  Friedmann  wrote  to  me  he  dared  not  publish  it 
owing  to  the  anti-semitic  agitation,  and  therefore  gave  me  the  material 
gathered  on  this  subject,  which  I  publish  here  with  the  expression  of  grati- 
tude to  this  excellent  scholar.  S.  Appendix  II. 

§Orient  1842,  Lit.  Bl.  353  ff. 

HWhich  Salomon  Klein  in  his  tX'p  "JDO  Frankfurt.  1861  counts  as  one  of 
Fr's  merits. 


30 

as  classical  instances  against  the  claim  of  a  Mosaic  origin  of  the 
rabbinical  law,  while  the  third  shows  such  a  wide  departure  from 
the  text  of  the  Pentateuch,  that  it  will  serve  to  prove  that  in  the 
second  century,  in  spite  of  the  belief  in  an  authentic  tradition,  new 
laws  were  consciously  derived  from  the  text  of  scripture  These 
laws  are  the  interpretation  of  retaliation,  the  date  for  Shabuoth,  and 
the  prohibition  against  the  mixing  of  meat  and  milk. 

The  law  of  retaliation  (jus  talionis)  is  clearly  stated  in  three 
passages  of  the  Pentateuch.*  That  it  has  to  be  understood  literally 
follows  clearly  from  the  context.  If  life  for  life  is  to  be  understood 
literally,  then  evidently  eye  for  eye  has  to  be  understood  literally. 
It  also  is  proven  as  the  Karaites  emphasized  from  a  grammatical 
point  of  view,  "As  he  hath  caused  a  blemish  in  a  man  so  shall  it  be 
rendered  unto  him  "  13  jfiJVt  It  is  evident  further  from  a  historical 
point  of  view,  because  the  later  Pharisaean  exegesis  had  for  apolo- 
getic reasons  limited  the  law  of  retaliation  in  the  case  of  false  wit- 
nesses to  the  case,  when  the  falsehood  was  discovered  after  the 
sentence  was  rendered  and  before  it  was  executed. J  This  illogical 
application  of  a  law  could  never  be  understood,  if  it  had  been  a 
practical  one,  but  it  is  an  apologetic  attempt  to  defend  the  law  before 
the  forum  of  a  changed  ethical  judgment.  The  fact  that  the  Egyptians, 
Solon,  and  the  Roman  legislation  had  a  similar  la\v§  may  also  be 
regarded  as  a  historical  evidence  against  the  reliability  of  the  rabbi- 
nical exegesis.  Finally  the  psychological  basis  of  the  law,  the 
satisfaction  to  the  ethical  sense  derived  fram  retaliation,  is  still 
recognized  in  the  philosophical  system  of  Herbart.||  So  all  possible 
evidence  stands  against  the  truth  of  the  rabbinical  interpretation  of 
this  law,  and  consequently  this  interpretation,  although  very  old, 
and  partly  testified  to  by  Josephus**  is  not  a  traditional  one  in  any 


*Ex.  I'l,  L'l.  i.'o;  Lev.  24,  19,  20;  Deut.  10.  ]!»,  t>l. 
tlbn  Ezra  Com.  on  Kx.  L'U  1M. 

iMnkkotii  .y,  pnnj  PN  inn  p:nnj  inn  xb. 

$See  on  tin-  parallels  in  the  ancient  laws:  Dillmann  Comm.  on  Mxodus 
L'nd  «.<!..  p.  •_>:!!'.  Miehaelis,  Mos.  Recht.  .">,  .V>,ff.  Sanlschuetz  Archa-ol.  II.  _'W 
Frankel,  ger.  Beweiss  p.  oO. 

Illdee  der  Ver^-lt  ung  oder  Billifjkcit . 

:Mo~,.phus  Anl  i<|.   I.  s,  :j.'i  interpret-,  retaliation  as  optional,  and  concedes 

to  the  plaintiff  the  riyht  to  change  it  l,v  accepting  damages,  while  IMiilo  II. 

and   :WL'   insists  on   the   literal   explanation.     See    Kilter    1'hilo  und   die 


37 

sense  that  would  make  it  equal  to  the  Mosaic  law.  The  date  of 
Shabuoth  is  another  instance  of  the  same  character.  The  biblical 
injunction,*  as  Ibn  Ezraf  in  his  intentionally  obscure  language 
indicates,  leaves  no  doubt  that  Shabuoth  is  a  festival  of  movable 
date.  His  argument  that  Shabuoth  is  the  only  festival  for  which 
no  date  is  given  and  that  if  the  date  were  fixed  the  counting  would 
become  useless,  can  not  be  refuted.  Still  the  counting  of  the  fifty 
days  according  to  the  rabbinical  Pharisaean  exegesis  begins  with 
the  second  day  of  Pessach  instead  as  it  ought  to,  with  the  first 
Sunday,  and  this  exegesis,  old  though  it  be,  is  not  traditional  in 
the  proper  sense,  because  it  is  diametrically  opposed  to  the  letter 
and  spirit  of  the  biblical  law. 

The  prohibition  against  the  mixture  of  milk  and  meat  is  one  of 
the  most  significant  evidences  of  pseudo-tradition.  This  law,  u  Thou 
shalt  not  seethe  a  kid  in  its  mother's  milk,"*  is  obscure  and  perhaps 
only  to  be  explained  from  conditions  of  the  age  which  are  unknown 
to  us,  but  surely  it  does  not  mean  a  prohibition  against,  the  mixture 
of  milk  and  meat,§  and  if  Wiener's  clear  representation  of  the  scien- 
tific facts  need  any  support,  it  is  furnished  by  the  lamentably  weak 
criticism  of  D.  Hoffmann. |  The  only  possible  explanation  of  such 
an  exegesis  is  found  in  a  stubborn  opposition  to  Christianity,  which 
favored  a  more  symbolical  exegesis  and  against  which  the  orthodox 
school  of  R.  Akiba  upheld  the  principle  that  God's  laws  must  not 
be  explained  as  symbolic  expression  of  his  mercy  but  are  mere 


Halacha,  p.  19.  Philo's  testimony  is  in  itself  sufficient  to  prove  that  the 
Pharisaean  interpretation  of  the  jus  talions  is'merely  apologetical. 

*Lev.  23,  15. 

tCom.  ad  locum. 

}Ex.  23,  lit.     34,  2ii.     Deut.  14,  21. 

•jChullin  1036.      Frankel  Vorstudien  xur  Septuaginta  p.  188-.      Herzfeld 
Jued.Gesch.  111,531.  Rappoportf^D -pJJp.lOla.  Ritter  1.  c.,  p.  128.  Wiener: 

SpHsp<r*'setze.  Philo  II,  39!)  says  that  it  is  a  cruelty  to  seethe  the  kid  in 
the  milk  on  which  it  fed.  an  argument  which  Ibn  Ezra,  Com.  on  Ex.  23,  19 
seems  to  favor,  for  in  his  usual  way  he  sarcastically  defends  the  rabbinical 
law.  saying,  that  as  we  buy  meat  and  milk  on  the  market  we  might  acci- 
dentally cook  a  lamb  in  its  mother's  milk,  and  shall  therefore  not  cook  any 
meat  in  milk. 

HJued.  Presse  ls'.»i. 


38 

decrees  JYnTJ.*  And  in  spite  of  the  fact  that  this'interpretation  is 
contrary  to  all  laws  of  exegesis,  that  it  is  only  found  since  the 
second  century, f  that  in  Babylonia  it  was  still  unknown  in  the  third 
century .J  it  is  since  that  time  held  to  be  traditional.  So  wo  have 
proven  that  recent  laws  could  by  and  by  be  regarded  as  traditional, 
and  that  even  the  old  laws  are  far  from  being  traditional  in  the 
sense  that  they  are  the  oral  explanation  of  the  written  law,  as  given 
by  its  original  promul gator. 

6.  It  is  a  fact  which  no  reasonable  man  can  deny  that  there  exists 
a  pseudo-tradition,  and  that  in  religious  literature,  especially  fraud 
and  self-delusion  were  to  a  great  extent  instrumental  in  the  produc- 
tion of  a  vast  pseudo-epigraphic  literature.  In  a  critical  age  like 
the  eighteenth  century  the  songs  of  Ossian  were  published  and 
believed  to  be  the  authentic  poetry  of  a  Scotch  bard  of  the  third 
century,  and  a  man  like  Gcethe  accepted  them  as  an  ancient  docu- 
ment, although  in  the  best  case  their  origin  does  not  date  back 
farther  than  the  twelfth  century. §  Bodenstedt  could  make  the  world 
believe  that  the  songs  which  he  published  as  songs  of  Mirza  Schaflv 
were  the  product  of  an  oriental  writer,  and,  had  he  not  chosen  to 
confess  his  authorship  there  might  be  believers  today.  ||  Just  recently 
a  notice  went  through  the  papers  that  the  sentence  against  Jesus 
rendered  by  Pilate  is  preserved  in  a  brazen  tablet  in  the  monastery 
of  Caserta.**  One  Notowitch  a  year  ago  had  the  impudence  to  pub- 
lish an  account  of  Jesus'  biography  from  his  thirteenth  to  his 
thirtieth  year,  which  he  pretended  to  have  discovered  in  a  Tibetan 


•Berakhoth  336;  see  also  Megillah  2-v». 

tThe  oldest  authority  quoted  in  connection  with  this  interpretation  is  K. 
Akiha,  and  to  him  seems  to  belong  the  honor  of  having  first  interpreted  the 
threefold  repetition  of  this  law  (Chullin  113'0- 

jRab,  returning  from  Palestine  to  Babylonia,  his  native  country,  found 
that  the  prohibit  ion  against  the  mixture  of  meat  and  milk  was  unknown 
there  (Chullin  llOa.) 

^Stephens  :  The  literature  of  the  Kymry.  This  is  a  case  very  similar  (<»  our 
tradition.  It  may  be  old,  but  is  not  as  old  as  it  purports  to  be. 

IlKu-nig  Literaturg  p.  <;4i'. 
••Cine.  Volksblatt.  .March  '.>.  ls7«i. 


39 

monastery.*  The  princes  of  the  imperial  house  of  Austria  today 
possess  the  title  of  arch-duke,  which  is  derived  from  a  forged  docu- 
ment ascribed  to  Emperor  Frederick  Barbarossa,  but  in  reality 
manufactured  by  Duke  Rudolph  in  the  fourteenth  century.f  The 
pupal  archives  abound  with  such  documents.];  Mediaeval  authors 
manufactured  not  a  few  Aristotelian  works.§  Jewish  literature 
furnishes  similar  evidences.  Lazarus  Goldschmidt  just  recently  man- 
ufactured a  Midrash  ascribed  to  one  Arzilai  bar  Bargilai,  a  transpo- 
sition of  his  own  name,  Eliezer  ben  Gabriel.  As  if  it  were  to  make 
atonement,  the  same  gentleman  in  his  edition  of  the  Book  of  Creation 
is  willing  to  ascribe  this  theosophical  production  of  the  ninth  cent- 
ury to  R.  Akiba's  age.||  It  is  said  that  the  disciples  of  Eliah  Wilna, 
the  Gaon,  showed  their  appreciation  of  the  master  by  publishing 
posthumous  works  which  they  had  fabricated  themselves.**  Isaac 
Samuel  Reggio  is  not  entirely  free  from  the  suspicion  that  he  has 
written  the  severe  attacks  on  rabbinical  Judaism  which  are  com- 
monly attributed  to  Leon  Modena.ff  The  most  audacious  attempt 
to  use  a  celebrated  name  in  order  to  lend  importance  to  an  inferior 
work  of  literature,  is  the  bold  forgery  of  Zohar,  the  author  of  which, 
Mose  di  Leon,  ascribed  his  work  to  R.  Simeon  ben  Yo'haj,Jt  and  in 


*La  vie  inconnue  de  Jesus  Christ,  Paris,  1894.  This  impudent  forgery  has 
already  been  exposed  by  Max  Mueller  right  after  its  publication  (Nineteenth 
Century,  1894.  TI,  515)  and  recently  (ib.,  Apr.,  1896.  p.  667)  he  proved  that  all 
of  X.'s  statements,  how  he  came  into  possession  of  this  rare  manuscript,  are 
simply  lies.  It  gives  me  satisfaction  that  I  discredited  the  whole  story 
before  Max  Mueller's  article  appeared.  (Deborah,  Aug.  30, 1894.) 

tPrivilegium  majus,  literature  on  this  subject  in  Krones :  Grundriss  d. 
Oest.  Geschichte,  p.  361. 

iDoellinger  :  Die  Papstfabeln  des  Mittelalters,  1863. 
§Steinschneider.    Die  hebr.  Uebersetzungen  p.  229. 
IIDas  Buch  d.  Schoepfung,  Frkfrt.  1894,  p.  12. 
**Kayserling  Die  juedische  Literatur  p.  36. 

-T\.  S.  Libowitz  recently  in  his  book  R.  Jeh.  Arjeh  Modena,  Vienna,  1896. 
p.  42  ff .  discussed  the  question  of  the  genuineness  of  the  two  anti-rabbinical 
works  ascribed  to  Leon  Modena.  and  arrived  at  a  positive  result. 

tJThis  forgery*  already  exposed  by  Abraham  Zacuto  (Jochasin  ed.  Fili- 
powski,  p.  95)  and  by  Jacob  Emden  in  his  D'HED  nnDBE  is  extensively 
treated  by  Graetz  VII.  424.  ff. 


40 

spite  of  an  early  discovery  of  this  fraud  there  are  thousands  of  Jews 
today  who  believe  in  its  authenticity,  which  was  defended  by  the 
reformer  Moses  Kunitz*  and  partly  admitted  even  by  such  a  critic 
as  Jacob  Emden,  although  he  brought  evidence  that  the  author  of 
the  Zohar  was  familiar  with  the  jargon  of  the  Spanish  Jews.f  In 
the  eighteenth  century  R.  Saul  Berlin  had  the  impudence  to  manu- 
facture a  volume  of  Responsa  attributed  to  R.  Asher,J  and  even  he 
found  believers,  and  he  might  have  escaped  the  wrath  of  the  outraged 
rabbinical  contemporaries,  had  he  not  had  the  impudence  to  put 
into  the  mouth  of  R.  Asher  utterances  savoring  of  a  religious 
liberalism  which  was  highly  offensive  to  the  orthodox.  We  know 
of  many  books  attributed  to  Maimonides  of  which  the  latter  is 
entirely  innocent.^  The  age  of  the  Geonim  was  very  prolific  in  the 
production  of  Kabbalistic  works  attributed  mostly  to  authorities  of 
the  second  century,  and  sometimes  even  to  Patriarchs.  At  the  same 
period  compilations  of  Homilies  were  published,  which  were  attrib- 
uted to  Talmudic  authorities  of  an  early  period,  as  to  Rab,  to  R. 
Tan'huma,  and  to  R.  Kohana,  although  it  needed  not  a  great  amount 
of  criticism  to  discover  that  names  and  sayings  are  found  in  them 
which  belong  to  a  later  period  than  the  alleged  author  of  the  com- 
pilation.! 

The  two  centuries  preceding  and  the  two  centuries  following  the 
Christian   era   have  produced   such  a  mass  of  pseudo-epigraphic 


*In  his  "NHV  p  Vienna,  1815. 

tAsnoga,  the  Portuguese  jargon  word  for  synagogue,  is  explained  in  the 
/ohar  from  H31J  C'K.  Still  Emden  begins  his  work  with  the  profession 
that  the  Zohar  is  "holy  of  holies."  It  is  interesting  that  Mendelssohn  in 
liis  introduction  to  the  Pentateuch  accepts  the  testimony  of  Zohar  in  regard 
to  the  ancient  testimony  of  the  vowel  points. 

il"N~l  D'DKO  Azulai  8.  v.  is  willing  to  accept  the  testimony  of  Saul's  father 
n-  evidence  of  the  genuineness.  Zunz  :  Ritus  p.  226.  Loew  Ges.  Schr.  II.  183. 

SGra-tz  VI.  380. 

||See  Zunz,  G.  V.  204,  245,  Weiss  II.  225;  III.  252,  Friedmann's  and  Hulx-r's 
int  roductions  to  the  works  edited  by  them.  I  shall  point  here  only  to  the  fact 
that  in  Pesiqtha  d'Rab  Kohnna  ed.  Buber,  p.  iss^  f.  \\e  find  the  legend  of 
t  he  baft  lc  lift\\ .  l.fvjathan  ;md  I'.eheiimth  which  is  evidently  a  compilation 
<»f  the  two  Haggadus  in  P..  Uathra  74"  f.  and  therefore  this  Midrash  bears 
wrongly  the  name  of  R.  Kohana. 


41 

literature  that  it  would  be  an  almost  miraculous  phenomenon,  had 
the  rabbinical  literature  escaped  the  contagion.  In  the  year  164  B. 
C.  a  Jewish  millenarian,  impressed  with  Ihe  historical  significance 
of  the  death  of  Antiochus  Epiphanes,  wrote  a  prophecy  which  he 
purported  to  have  been  written  by  Daniel  according  to  the  dictation 
of  a  heavenly  messenger  on  the  25th  of  Nissan  555a  Ch.  and  hidden 
in  a  sealed  box  on  the  banks  of  the  Tigris  until  the  time  of  the 
fulfillment.* 

The  Hellenistic  party  which  had  learned  to  respect  the  literature  of 
the  Greeks  found  its  prophets  amongst  the  celebrated  names  of  the 
Greek  literature.  Aristobul  who  lived  about  the  middle  of  the  second 
century  B.  C.  makes  Orpheus  the  interpreter  of  Moses'  laws.f  Some 
time  later  an  anonymous,  who  seems  to  have  been  an  Alexandrian  Jew, 
introduces  the  Roman  Sibyl  as  prophecying  that  after  the  seventh 
king  of  the  Ptolernees  the  Jews  would  reign  over  the  whole  world.  * 
More  modest  in  his  aspirations  is  another  Greek  Jew  who  in  the 
disguise  of  Sibyl  predicts  that  a  ruler  whose  name  will  be  like  the 
name  of  a  sea  (Hadrian)  would  rebuild  the  temple.  §  The  Christians 
profited  by  this  example.  The  Sibyl  who  it  seems  had  been  con- 
verted to  Christianity  made  a  poem  on  Jesus  with  the  acrostich 
Jesus,  son  of  God,  savior,  cross.  ||  Similarly  Christians  interpolated 
the  cross  of  Jesus  into  the  Psalms,  and  his  descent  to  hell  into 
Jeremiah  and  were  quite  indignant  when  the  Jews  charged  them 
with  the  forgery  of  these  passages,  retaliating  that  the  Jews  in  the 
hardness  of  their  hearts  had  expurged  these  passages.**  Such  a 
forgery  of  biblical  writings  was  so  common  that  R.  Akiba  condemned 
every  one  to  hell  who  would  read  apocryphal  books  D'OIXTl  D'HED,tt 


*The  introductions  to  the  O.  T.  fix  the  date  of  Daniel  about  168  B.  C.  It 
seems  to  me  evident  that  the  author  wrote  under  the  impression  of  the 
hopes  which  the  unexpected  death  of  Antiochus  (Dan  11,  45)  produced 
amongst  the  Jews. 

tSee  Zeller  Gesch.  d.  gr.  Phil.  Ill,  2,  1. 
iSibylline  Oracles  III.  piece,  verses  162-195. 
§  Sibylline  Oracles,  v.  247. 
II  VII  I.  217.  ff.  cp.  V.  250-259. 

**Hilgenfeld  :  Die  alttest.  Citate  Justin's  in  Zeller  :  theol.  Jahrb.  1850,  p. 
399  ff. 

ttSynh.  90a. 


-12 

and  R.  Gamaliel,  another  opponent  of  Christianity,  would  not  allow 
the  reading  of  a  Greek  translation  of  the  Bible.* 

When  passages  such  as  the  story  of  Susan f  were  interpolated  into 
the  biblical  books,  and  when  some  scribblers  had  the  boldness  to 
write  a  book  of  Enoch,J  in  which  this  seventh  descendant  of  Adam 
described  his  adventures  in  heaven,  is  it  likely  that  just  rabbinical 
laws  should  have  remained  immune  from  the  epidemic  forgery, 
which  is  so  much  the  less  probable,  as  partisan  views  and  theological 
opinions  such  as  inspired  a  writer  of  the  second  century§  to  put  his 
theosophic  mystic  views  on  the  identity  of  Jesus  with  the  Neo- 
Platonic  Logos  into  the  mouth  of  Jesus,  always  emphasizing  the 
truth  of  his  sayings,  and  the  veracity  of  his  witnesses,  existed  just 
as  well  amongst  the  Jews,  and  caused  them  to  emphasize  the  Mosaic 
origin  of  certain  rabbinical  laws  just  as  the  author  of  the  fourth 
gospel  feli  bound  to  make  Jesus  say,  "All  things  that  are  mine  are 
thine,  and  thine  are  mine."||  Therefore  it  is  quite  evident  why  R. 
Joshua  said,  that  it  was  a  tradition  which  could  be  traced  in  an 
uninterrupted  chain  to  Moses  that  the  prophet  Elijah  would  not 
•  •nine  to  declare  anything  as  clean  or  unclean,  to  expel  or  to  take  in, 
but  to  expel  those  who  had  been  taken  in  by  force  and  to  take  in 
those  that  had  been  expelled  by  force.**  R.  Joshua  emphasizes  the 
Pharistean  theory  that  the  Messias  could  not  abrogate  the  law  while 
the  Christians  taught  the  contrary.  In  order  to  emphasize  that  the 
unchangeableness  of  the  Mosaic  law  was  a  fundamental  doctrine  of 
Judaism  he  traced  it  back  to  Moses,  just  as  the  author  of  the  fourth 
gospel  traced  his  theology  back  to  Jesus,  and  makes  Jesus  say,  that 
Petrine  Christianity  should  only  be  a  transition  to  the  true  Johan- 


•Sahbath  llOa. 

tin  the  apocryphal  Daniel  ed.  Tischendorf,  II,  4sn  fl 

;  I 'ill maim  edited  the  Ethiopia  text  of  Enoch  1851 ;  an  English  translation 
II.  Schodde  Andover  1882. 

$The  author  of  the  fourth  gospel. 

HJohn   17,  10.     It  may  not  be  out  of  place  to  point  to  the  remarkable 
parullel  in  Abotli   •">.  in.  \vhi<-li  declares  this  saying  as  characteristic  of  an 

pxn  Dy. 

**Edujoth  8,  7. 


43 

neic  Christianity.*  Frankel  omitted  this  "Mosaic  tradition"  in 
the  enumeration  of  these  traditions  in  his  Hodegetics.  As  quite 
natural,  apologetes  built  their  dialetic  card-houses  on  this  omission, 
saying  that  Frankel  intended  to  speak  of  real  laws  and  not  of 
haggadic  sentences. f  At  all  events  he  missed  a  vital  point  in  the 
explanation  of  this  rabbinical  conception,  as  did  I.  H.  Weiss,  who 
in  his  first  volume^  explained  R.  Joshua's  view  to  mean  that  the 
rabbis  should  have  the  right  to  decide  questions  of  the  law  by  a 
vote  without  waiting  for  a  heavenly  intervention,  in  the  second 
volume  partly  admitted  that  it  was  anti-Christian. § 

The  two  other  laws  which  the  Mishna  calls  Mosaic  are  one  about 
the  tithe  in  the  land  of  Ammon  and  Moab;||  the  second  about  a 
restriction  in  the  application  of  the  law  to  leave  the  corner  of  the 
field.**  It  is  not  quite  clear  why  just  these  laws  should  be  so 
emphasized,  but  it  may  be  that  both  laws  are  humanitarian  enlarge- 
ments of  the  Mosaic 'injunction  :  at  all  events  they  are  not  Mosaic 
as  even  Lipmann  Heller  admitted  ;ff  consequently  they  belong  to 
the  class  of  pseudo-traditions. 

To  these  probabilities  we  may  add  several  instances  in  which 
Talmudic  authorities  express  a  doubt,  whether  a  certain  rabbini- 
cal law  is  authentic  or  not  KntWtPD  KD^H  STI  SnXIfiDT  ]b  KD^  iNO 

1  I 

NTlJt  and  although  such  doubt  may  have  its  origin  in  a  dialectic, 
rather  than  in  a  historic  conviction,  as  is  the  case  when  David 
Ha-Levi  expresses  his  doubts  concerning  the  genuineness  of  a 
decision  rendered  by  Benjamin  of  Solnik,§§  still  it  is  evident  that 
false  Halakhoth  must  have  existed,  which  is  so  much  the  more 
certain  as  the  same  phrase  is  quoted  by  different  authorities  so  that 
it  must  have  been  a  proverbial  expression. 

*.Toh  21,  21. 

tBeer  Z.  d.  m.  G.  1861,  p.  320;  see  Ben  Chananjah  1861,  p.  320. 

ip.  72,  note. 

HJadajm  4,  3. 

**Peah  2,  6. 

ttln  the  passages  quoted  p. 

ttSabbath  1216;  Pesachim  996. 

§§Ture  Zahab  402,  9 


44 

Moreover  Itabina  towards  the  end  of  the  fifth  century  lays  down 
the  rule  that  if  a  law  is  self-contradictory  SS^DS  KB^n  fcOtfpl  JTPS 
it  shall  not  be  taught  nor  made  the  basis  of  practical  decisions,  but 
be  left  to  the  individual  opinion  of  the  rabbi,*  and  finally  in  some 
instances  the  Talmud  clearly  states  that  a  certain  law  is  wrongly 
attributed  to  Raphrem,f  that  Rabbi  Abahu  ascribed  the  permission 
to  study  Greek  to  R.  Jochanan  because  he  wished  his  own  daughters 
to  acquire  the  knowledge  of  GreekJ  and  that  a  certain  law  was 
ascribed  to  R.  Jose  in  order  to  give  authority  to  it,  because  R.  Jose 
was  considered  a  man  who  deliberately  weighed  the  reason  for  a  law 
1EJJ  1p10sl§.  It  is  therefore  easily  understood  that,  when  the  Talmud 
says,  '*  He  who  reports  a  law  in  the  name  of  him  who  originated  it, 
brings  salvation  to  the  world,"||  it  referred  to  those  who  attributed 
their  own  views  to  older  authorities,  for  it  is  said  in  another  place 
that  he  who  reports  a  law  in  the  name  of  one  who  did  not  originate 
it,  causes  the  Shekinah  to  withdraw  from  Israel.**  R.  Eleazar  bar 
Simeon  says  expressly  :  "Just  as  it  is  man's  duty  to  repeat  what  he 
has  heard,  i.  e.,  to  propagate  true  tradition,  so  it  is  his  duty  not  to 
propagate  false  tradition. ft 

When  the  same  R.  Eleazar  is  quoted  as  saying  to  R.  Jehuda 
Hanassi,  "I  have  learned  from  my  father  more  while  standing, 
i.e., from  occasional  remarks, than  you  have  learned,  while  sitting, 
i.  e.,  in  the  regular  course  of  instruction,"  it  is  proven  from  the 
context,  that  an  opinion  ascribed  by  R.  Jehuda  Hanassi  to  R. 
Simeon  is  by  the  latter's  son  regarded  as  apocryphal.^ 

Aside  from  these  indirect  arguments  we  can  bring  positive 
statements  to  prove  that  intentionally  certain  opinions  were 
put  into  the  mouth  of  older  authorities.  Very  frequently  we  find 


*See  on  similar  passages 

tK'rithoth  14a. 

tJer.  Peah  1, 1. 

§Erubin  51u. 

IIAboth  VI, (i;  Megilla  15a  see  Abraham  <  iuliMibinni'r  O.Ch.  1  ."><;. 

**Berakhoth  L'7/*. 

ttJebamoth  l>-V<. 

{JJer.  Sabbat h  L0,5;   \\Vi>s  II.  185. 


45 

that  later  rabbi*  swear  by  God  mtttf  CT6tfn*  to  emphasize  the 
truth  of  their  assertions  that  a  certain  older  rabbi  really  had  said 
what  they  quote  in  his  name.  Rabbi  Zera  rebukes  some  of  his 
contemporaries  with  th<j  words,  "R.  Isaac  is  still  living  and  yet 
you  put  on  him  your  rags."f  Of  the  same  R.  Zera  it  is  said  that 
to  him  may  be  applied  the  scripture,  "A  faithful  man  who  can 
find,"*  because  there  were  few  like  him  who  would  be  so  careful 
in  regard  to  the  preservation  of  the  correct  tradition.  Famous 
rabbis  like  R.  Xahman  were  especially  favored  by  forgers  of  tra- 
dition, and  Rabba  gives  it  as  an  often  repeated  warning,  "  Did  I 
not  say  unto  you,  you  should  not  hang  empty  cans  upon  R.  Nach- 
man.§  Although  the  details  of  this  metaphor  are  not  clear  to  us, 
the  general  idea  is  manifest.  R.  Nachman  is  a  mighty  tree  and 
of  one  who  would  make  himself  conspicuous  by  the  glory  of 
another  it  is  proverbially  said,  '*  He  hangs  himself  on  a  high  tree," 
and  it  is  most  probably  this  practice  which  prompts  R.  Akiba  to 
say  to  his  disciple,  Simon  ben  Yochai,  "If  you  wish  to  hang  your- 
self, hang  yourself  on  a  high  tree."|| 

There  is  another  feature  in  the  history  of  the  rabbinical  law 
that  even  in  our  Talmud ic  literature  there  is  found  frequently  an 
expression  of  doubt  regarding  the  author  of  a  certain  opinion 
"I  KSTPtfl**  or  regarding  the  opinion  of  a  certain  author  fro*1** 
1  "tSK  fcOn  "nESTtt  Finally  a  great  part  of  the  contents  of  our 
Talmud  has  been  added  by  the  Saburaim  and  Geonim  from  the 
seventh  century.**.  This  fact  is  in  many  instances  manifest  to  the 


*Erubin  146 ;  Meg.  10o  and  frequently 
tier.  Maasser  sheni  1,  3. 
;Prov.  20,  6.  Jer.  Sabbath  I,  2. 
SAboda  Zara  376. 
HPessachim  I12a. 

**Joma  2(>6,  cp.  Sabb.  (j3a  :  Said  Abbaj  to  R.  Dime,  ace.  to  others  Rab.  Avja 
said  it  to  R.  Dime ;  ace.  to  others  R.  Joseph  to  R.  D. ;  ace.  to  others  R.  Avja 
to  R.  Joseph  ;  ace.  to  others  Abaj  to  R.  Joseph. 

ttChullin  36. 

;;Mielziner  Introd.  p.  60;  Weiss  III.  93  and  220  ff. 


46 

cnn-ful  reader  by  cont r;ulicti«>ns.  by  the  dill'erence  in  style,  and 
by  the  interpolation  of  passages,  which  disturb  the  context.* 
This  has  been  admitted  as  a  fact  even  by  the  strict  traditionalists 
of  media-val  times:  by  R.  Sherira  Gaon,  by  Hashi.  by  the  Tossa- 
l)hists,  by  R.  Abraham  ben  David,  by  R.  X^rahja  halevi,  by  I!. 
Salomo  ben  Adret  and  many  others,f  and  still  criticism  of  the 
Talmudic  text  is  only  in  its  infancy,  and  greatly  impeded  by  the 
lack  of  old  manuscripts.  Internal  evidence  will  have  to  be 
weighed  more  than  external  evidence.  Many  passages  of  the 
Mishna  may  be  of  later  origin.*  Rabbi  Jehuda  who  without  a 
connection  with  the  context  makes  a  remark  concerning  Chanukka, 
may  probably  be  the  Babylonian  Rab  Jehuda  who  lived  a  century 
later  and  his  remark  a  gloss  on  the  text  of  the  Mishna  was  by  an 
overzenlous  copyist  written  in  the  text.§ 


*The  first  Mislma  DVODH  T1DK  HK&  3"K  (Ber.  1, 1)  shows  an  interpolation. 
A  both  1,5  shows  two  interpolations  from  different  times  11EN  ini"tO  and 
D'O3n  n»N  |X3O.  As  for  the  Talmud,  it  is  evident  that  it  consists  of 
different  strata,  which  just  as  those  that  form  the  crust  of  our  globe  are 
sometimes  changing  their  places,  the  younger  stratum  breaking  through 
the  older  and  erratic  granite  blocks  of  ancient  origin,  finding  their  way  to 
a  place  where  they  can  only  have  been  carried  by  a  glacier,  from  a  distant 
country.  Without  going  into  the  details,  it  is  quite  evident  that  K.  Ashe 
could  not  have  written  the  words  (B.  mezia  86a) :  Babina  and  R.  Ashe 
are  the  final  authorities  in  law,  i.  e.,  that  later  rabbis  could  only  comment 
upon  the  decisions  of  older  authorities  "QD  but  could  not  lay  down  inde- 
pendent decisions  ilKTin,  and  less  likely  could  he  have  found  this  fact  indi- 
cated in  the  Psalms  '73,  17)  until  I  shall  have  come  to  ^N  THpD  to  Ashe 
the  man  of  God  and  n3'3N  H.  Abinu  Dmnj^>  then  the  lawAvill  have  reached 
its  tinal  development.  This  pun.  worthy  of  K.  Moses  Teitelbaum,  who  is 
credited  with  having  discovered  Kossuth's  name  in  the  Psalms  (ill).  (>)  is 
the  product  of  a  mystically  inclined  mind  of  the  eighth  or  ninth  century. 

tThe  quotations" in  Weiss  III.  -JiM,  ff. 

iThe  Talmud  Joma  S3/>  quotes  a  Mishna  which  as  the  whole  tenor  proves, 

cannot  he  a  Mishna,  and  which  ace.  to  a  parallel  passage  Chullin  ]n<;</  is  a 
Palestenian  adage.  The  whole  quotation  is  ace.  to  Kabbinowitx  ^pnpT 
D'ISID  I.e.  interpolated. 

tChanakka* ia only  twice  mentioned  in  the  Mislma,  and  tioth  times  only 

,n  f,ii.-<s<ii,t.  We  further  >ee  that  only  authorities  of  the  time  nfter  the 
restoration  ofM'arseeism  hy  the  victory  of  Artaxerxes  over  Artaban  -'2(\  are 
•juoted  in  connection  with  this  tV>ti\al  and  that  consequently  thecelebra- 


47 

This  age  of  the  Geonim  was  especially  prolific  in  the  production 
of  works  which  sometimes  by  mistake,  but  in  most  instances, 
intentionally,  were  ascribed  either  to  older  Geonim  or  to  Talmudic 
authorities  or  to  biblical  persons.  R.  Sherira  Gaon  in  the  tenth 
century  expresses  his  firm  belief  that  an  opinion  quoted  in  the 
name  of  Saadjah  could  never  have  emanated  from  such  a  promi- 
nent scholar  who  certainly  would  not  have  overlooked  a  clear 
statement  in  the  Mishna.*  The  same  doubt  he  expresses  in  regard 
to  an  opinion  ascribed  to  R.  Mathathia  Gaon.f  Two  Geonim  of 
the  ninth  century  accused  R.  Jacob,  one  of  their  predecessors,  to 
have  used  the  celebrated  name  of  R.  Jehudaj  as  authority  for  his 
own  views  because  his  contemporaries  would  not  have  accepted  it 
on  R.  Jacob's  authority, J  and  R.  Paltoj  quite  frankly  advises  his 
disciples  to  ascribe  their  opinions  to  older  authorities  if  they 
thought  they  might  meet  with  opposition,  provided  they  were 
convinced  their  views  were  right.  J 

The  fabrication  of  books  ascribed  to  Talmudic  authorities  was 
quite  flourishing  and  especially  the  Kabbalists  were  masters  in 
this  branch  of  literature.  R.  Akiba  was  made  responsible  for  a 
Kabbalistic  work  called  yn  rrpmK,§  in  which  R.  Akiba  is  made  the 
author  of  theosophical  nonsense  of  which  in  his  Talmudic  sayings 
no  trace  can  be  detected.  R.  Ismael,  the  advocate  of  common- 
sense  exegesis  is  made  responsible  for  the  mystic  work  m^OTl,!  and 
R.  Sherira  Gaon  defends  the  authenticity  and  the  great  value  of 


tion  of  Chanukka  which  after  the  destruction  of  the  temple  had  altogether 
ceased  was  revived  through  the  persecution  of  the  Parsees  who  would  not 
tolerate  the  light  in  these  days  of  mourning.  The  Beth  Shammai  and  Beth 
Hillel  quoted  in  connection  with  Channuka  are  evidently  apocryphal  and 
taken  from  Massakhet  Sopherim,  a  production  of  the  seventh  century. 
(Sabb.  21off.) 

*Respp.  Shaare  Zedeq  I.  3,  11. 

tlb.  I.  8,  5. 

i Weiss  II  54  from  Chemdah  Genu/ah. 

§Ed.  by  Jellinek.     Beth  Hamidrash  III.  12-47. 

||Ib.  III.  83.  ff. 


4S 

such  a  nonsensical  fabrication  as  nDIp  myt^-*  The  haggadic  liter- 
ature shows  the  same  tendency,  and  it  was  evidently  a  forger  who 
wrote  the  Pirqe  d'  R.  Eliezer,f  a  Midrash  full  of  theosophical 
ideas  to  which  as  a  preamble  he  wrote  a  biographical  sketch  of  R. 
Eliezer  in  a  novelistic  manner,  and  this  fabrication  of  the  ninth 
century  was  even  by  Maimonides  accepted  as  an  authentic  work,J 
and  he  tried  to  rationalize  on  its  eccentric  exegetical  experiments, 
as  he  rationalized  on  some  haggadic  statements  of  the  Talmud, 
the  most  typical  of  which  is  to  make  of  the  thirteen  mystic  attri- 
butes of  God  thirteen  dogmatic  views. 

Other  talmudic  authorities  as  R.  Kohaua  and  R.  Tanchuma 
were  made  the  authors  of  homiletical  compilations  belonging  to 
this  era,  and  the  genuineness  of  their  authorship  is  defended  by 
a  man  of  such  stupendous  scholarship  like  Buber,  although  it  is 
evident  for  various  reasons  that  the  authors  of  these  compila- 
tions knew  already  our  Talmud. §  If  we  add  that  in  those  times 
a  writer  attributed  his  production  to  Sem,  the  son  of  Noa,  ||  and 
another  one  fabricated  a  book  of  Creation,  which  Saadjah,  Sabba- 
thai  Donnolo  and  Jehuda  ha-levi  attributed  to  Abraham,  while  I. 
di  Lattes  and  Gedaljah  ibn  Jachja  ascribed  it  to  R.  Akiba  and 
l.ii/arus  Goldschmidt**  is  generous  enough  to  leave  the  question 
about  the  author  undecided,  yet  assigns  it  to  an  anonymous  who 


*See  on  this  curious  piece  of  literature  Bloch  "  Gesch.  d.  Kutw.  d.  Kabb.," 
p.  14.  ff.  His  view  that  the  blasphemous  anthropomorphisms  of  this  book 
are  pedagogic  devices  to  give  children  an  idea  of  space,  is  not  preferable  to 
that  of  Gratz,  who  considers  it  a  protest  against  philosophical  ideas  about 
God.  The  defense  of  Sherirn  may  bo  forged. 

tSee  Zunz  G.  V.  p.  283. 

tMoreh  II.  :>(>  Zunz  I.e.  2!»()  seems  to  believe  that  Maimonides,  because  he 
speaks  of  the  Midrash  "known  as  that  of  Eliezer,"  did  not  accept  it  as 
genuine.  The  correction  of  N.  Bruell  in  the  second  edition  of  G.  V.  is  no 
improvement.  Bruell  proposes  to  read  instead  of  Maimonides  Xnruto 
Jachasin  p.  526,  but  in  that  place  there  is  no  mention  of  Eliezer,  while  p. 
.">i;/(  Xacuto  expresses  his  belief  that  Pirqe  d.  11.  E.  are  genuine. 

HOrient  1851,  p.  371. 

^Tanchuma  according  to  Buber  is  not  the  direct  work  of  this  Rabbi, 
although  based  on  his  homilies,  while  I'osiMt  Im  is  the  work  ol  I;.  Kohuna. 

**See  Goldschmidt :  Das  Buch  der  Sclm  pfung,  S.  2!),  IT. 


49 

lived  in  the  second  century,  it  becomes  evident  that  the  genuine- 
ness of  Talmudic  texts  as  we  possess  them,  is  highly  questionable. 
\Vf  may  therefore  safely  say  that  tradition  as  authentic  interpre- 
tation of  the  Mosaic  law  is  an  illusion,  because: 

I.     TheThora  never  mentions  the  existence  of  an  oral  law. 

IT.     It  directly  regards  the  written  law  as  sufficient. 

III.  The  authenticity  of  the  rabbinical  law  presupposes  the 
Mosaic  authorship  of  the  whole  Pentateuch. 

IV.  It  presupposes  the  existence  of  the  great  synagogue  which 
can  not  be  proven  from  historical  facts. 

V.  Some  of  the  rabbinical  laws  are  erroneous  interpretations 
of  scriptural  commandments. 

VI.  A  considerable  part  of  our  rabbinical  literature  is  pseudo- 
epigraph  ic. 


&  C£ 

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